Embed Size (px)
Citation preview
3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LEWIS AND ROCA LLP Randy Papetti (State Bar No. 014586)40 N. Central Ave. 19th FloorPhoenix, AZ 85004-4429(602) [email protected]
OSBORN MALEDON, P.A.Christina C. Rubalcava (State Bar No. 026357)2929 N. Central Ave., 21st FloorPhoenix, AZ 85012-2793(602) [email protected]
Attorneys for Defendant, through the Arizona Justice Project
IN THE SUPERIOR COURT OF THE STATE OF ARIZONAIN AND FOR THE COUNTY OF MARICOPA
STATE OF ARIZONA,
Plaintiff,
vs.
DRAYTON SHAWN WITT,
Defendant.
)))))))))))
No. CR2000-017311
MOTION TO EXCLUDE THE STATE’S EXPERT TESTIMONY
(Assigned to the Honorable Robert Gottsfield)
Hearing Set for Feb. 1, 2013
“The problem is not what we don’t know, but what we do know that isn’t so.”
-- quote often attributed (incorrectly) to Will Rogers.
I. Introduction
This is a Shaken Baby Syndrome (“SBS”) prosecution. That means it is a
prosecution based on a scientific hypothesis that has crumbled over the last decade. In
2002, the State and its medical experts invoked SBS to convict Drayton Witt of shaking
his baby son to death. They claimed it was a reliable diagnosis that proved beyond a
reasonable doubt that Mr. Witt violently shook his son even though: the baby had been
2 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
sick his whole life and even hospitalized for a week with seizures less than a month before
he died; the baby had no bruises, grip marks, or other outward sign of abuse; and the baby
had no focal lesions on his brain to indicate whiplash-like trauma. Today, the medical
examiner and overwhelming scientific and medical evidence tell us that the SBS diagnosis
in this case was plainly wrong, yet the State stubbornly persists.
In 2000, when baby Steven died at the age of 4 months 28 days, SBS was widely
accepted in the medical community. The Phoenix Children’s Hospital (“PCH”) doctors
who briefly treated Steven before he died diagnosed him with SBS almost immediately
after looking into his eyes and seeing his CT scan. But in the decade since PCH made that
diagnosis, an avalanche of science has exposed the SBS hypothesis as unreliable,
particularly in cases like Steven’s, where there were no outward signs of impact or abuse.
That is why Dr. Mosley, the Maricopa County medical examiner who in 2000 declared
Steven’s death a homicide based on SBS, has, in this case, given sworn testimony
recanting his conclusion and saying that he now believes Steven died of natural causes.
Similarly, Dr. A. Norman Guthkelch, the British pediatric neurosurgeon whose 1971 paper
set forth the original SBS hypothesis has given sworn testimony in this case that the SBS
hypothesis has never been validated in cases like Steven’s and that he, too, believes Steven
died of natural causes. And Dr. Patrick Barnes, the pediatric neuroradiologist who
famously testified against nanny Louise Woodward in 1997, likewise has given sworn
testimony in this case that Steven’s medical records contain zero indicators of non-
accidental trauma, and it is also his opinion that Steven died of natural causes. They have
altered their opinions because both the science underpinning the SBS hypothesis and the
method used to diagnose non-accidental head trauma in infants has evolved.
This motion to preclude is brought under revised Arizona Rule of Evidence 702
(“Rule 702”) and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)
(“Daubert I”), which require the Court to play a pretrial “gatekeeping” role to ensure that
proffered expert testimony is: (1) reliable, that is, grounded in valid scientific methods and
principles, (2) directly relevant to the case at hand, and (3) that the proposed experts are
3 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
qualified on the subjects that form the basis of their opinions.1 If the State cannot
demonstrate that its medical causation evidence meets the standards of Rule 702 and
Daubert, the Court must preclude the evidence.
Although the State has not designated any experts on retrial,2 the State’s medical
witnesses who testified in 2000 undeniably testified as purported experts; each rendered a
medical opinion about both the mechanism of SBS generally and the specific cause of
Steven’s death, supposedly based on their understanding of the scientific literature
pertaining to SBS and their review of Steven’s medical records. Medical causation
testimony, whether offered by a treating or independent expert, is subject to judicial
scrutiny under Daubert and Rule 702.
Since the Daubert decision, when faced with controversial expert testimony, courts
often reiterate this caution: “The courtroom is not the place for scientific guesswork, even
of the inspired sort. Law lags science; it does not lead it.”3 At best, SBS is a highly
controversial, unproven hypothesis unfit to serve as the basis for a murder prosecution; at
worst, SBS is junk science, a tragic hoax caused by overzealousness within the child
protection community that has contributed to hundreds if not thousands of wrongful
convictions. In either event, testimony about SBS must be precluded from any retrial of
Mr. Witt.
II. Background
Babies sometimes die without an obvious explanation. Beginning in the
1970s, pediatric doctors began advancing a hypothesis that, if a baby became very
1 As of January 2012, Arizona’s Rule of Evidence 702, which sets forth the standard for admissibility of expert testimony, now conforms to the federal rule. Accordingly, Arizona’s courts now have a duty to “serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury’s determination of facts at issue.” SeeRule 702 cmt to 2012 Amendment.2 Drayton intends to separately file a Motion to Dismiss the State’s case pursuant to Arizona Rule of Criminal Procedure 15.7 based on the State’s failure to disclose its expert witnesses under Rules 15.3 and 15.6 and this Court’s prior order.3 See, e.g., Hendrix v. Evenflo Co., 609 F.3d 1183, 1203 (11th Cir. 2010) (quoting Rider v. Sandoz Pharms. Corp., 295 F.3d 1194, 1202 (11th Cir. 2002) (quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996)).
4 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ill or died without an obvious reason why, and the baby had a certain “triad” of
findings -- (1) blood in the subdural area around the brain (subdural hemorrhage);
(2) microscopic bleeding within its retina (retinal hemorrhage); and (3)
encephalopathy (damage of the brain itself often accompanied by brain swelling
and a comatose state) -- that meant the baby had been violently shaken. They
called this constellation of symptoms “Shaken Baby Syndrome.” Those
advocating the hypothesis claimed that this triad of physical findings is virtually
unique to violent shaking.
By the time Steven died, the SBS hypothesis included well-accepted
dogma -- repeatedly espoused at child abuse trials -- about how shaking caused
these symptoms. Specifically, SBS advocates said that shaking causes the baby’s
brain to slide back and forth, which, in turn, causes bridging veins around the
brain to tear or rupture and thus hemorrhage into the subdural area overlying the
brain. Similarly, shaking forces were believed to cause retinal blood vessels to
strain and then burst, causing microscopic retinal hemorrhages. And the real
harm -- the brain damage and swelling -- was believed to be caused by nerve
fibers within the baby’s brain shearing during shaking. A shaken baby, the
hypothesis went, would be immediately comatose from these injuries, meaning
that an SBS diagnosis was seen as pinpointing the perpetrator and the time of
injury as well.
The following background discussion lays out Steven’s medical history,
which essentially constitutes the “facts” that the State’s experts claim prove SBS.
It also summarizes the expert SBS testimony given at Mr. Witt’s initial trial --
testimony that falsely convicted Mr. Witt and that cannot be allowed again.
5 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A. Steven Witt
1. His Parents
Drayton Witt4 and Maria Holt met while they were very young. In January of 1999,
they began dating. Maria was 19 and Drayton was 17. About two months later, they
briefly separated. While they were apart, Maria was involved in another relationship and
became pregnant. (App. Tab 25 at 39:3-15.)5 Shortly thereafter, Maria and Drayton
decided to give their relationship another try. Drayton told Maria that he loved her and he
would love the baby. (Id. at 40:7-14.) Drayton kept his word.
2. Steven’s Traumatic Birth
Steven was born on January 5, 2000, at Paradise Valley Hospital, identified in the
hospital records as a “FULL TERM NEONATE W MAJOR PROBLEMS.” (App. Tab 9
at PET-000002.) The delivery was traumatic for Steven. He was born with the umbilical
cord wrapped tightly around his neck, had aspirated meconium (fecal matter), and he was
in respiratory distress. (Id. at PET-000003-6.) The medical staff assigned Steven an
APGAR score of 4 on a 10 point scale and diagnosed him as a “sick” baby with metabolic
acidosis, low blood pressure, and low blood flow. (Id. at PET-000004.) He required fluid
resuscitation, oxygen, and sodium bicarbonate to counteract the metabolic acidosis. (Id. at
PET-000011.) He was noted to have a depressed central nervous system. (Id. at PET-
000005.) Steven seemed to improve rapidly, however, and on January 7, 2000, was
discharged home with his mother and father. (Id. at PET-000001.)
3. Steven’s Health Problems During His First 3 Months
Although the first few weeks following Steven’s release from the hospital were
uneventful, this respite was short-lived. On February 4, 2000, Maria brought Steven to the
pediatrician because he had been running a fever, coughing, and vomiting for three days.
(App. Tab 10 at PET-000183.) The doctor diagnosed Steven with an upper respiratory 4 Throughout the remainder of this brief we refer to Drayton Witt as “Drayton” to more easily distinguish when we are talking about him as opposed to his wife or son.5 The “App” references in this brief are to the Appendix filed by the defense in conjunction with the Petition for Post-Conviction Relief. For the Court’s convenience, however, we have attached the declarations referenced in this motion as exhibits.
6 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
infection and ordered a blood culture and urinalysis. (Id. at PET-000182-93.) Maria
called the doctor that same day to try to learn the result of the day’s testing. (Id. at PET-
000184.) Maria brought Steven back in the next day for a follow-up. (Id. at PET-
000194.)
A few weeks later, Steven was sick again. When Maria brought Steven back to his
pediatrician for his two-month check-up on March 7, it was noted that Steven had a fever
and was recovering from an upper respiratory infection. (Id. at PET-000195.) From
approximately this time forward, Maria was “always on the phone with the doctor or
going in to see his pediatrician.” (App. Tab 25 at 45:22-23.)
The following month, on Sunday, April 30, 2000, Maria took Steven to the
emergency room. He again had a fever, congestion, and was vomiting. (App. Tab 10 at
PET-000197.) Emergency room doctors suspected that Steven had early pneumonia and
gave him antibiotics. (App. Tab 11 at PET-000051.) They directed Maria to follow up
with Steven’s pediatrician the next day, which she did. (Id.; App. Tab 10 at PET-000198.)
When Maria called Steven’s pediatrician, she informed the doctor that Steven appeared a
little better but was still feverish. Although the emergency room doctors at Paradise
Valley Hospital had intended for Steven to be seen by his pediatrician the very next day
(Monday, May 1, 2000), Steven’s pediatrician decided not to schedule a visit until the
following Thursday. Instead, over the phone, Steven’s pediatrician prescribed Cefzil,
another antibiotic. (App. Tab 12 at PET-000068; App. Tab 10 at PET-000198.)
4. Steven Has Massive Seizures
Maria followed the pediatrician’s instructions, but, just a few hours after giving
Steven his first dose of Cefzil, Steven’s eyes deviated and his left eye could not focus.
Steven refused his bottle and simply laid there, holding his mother’s hand. Maria stayed
up all night with him alone, while Drayton was at work. (App. Tab 25 at 47:7-23.) Early
the next morning, on May 2, 2000, Maria was holding Steven when he suddenly threw up
and started to shake. At that moment, Drayton came home and they rushed Steven to the
Paradise Valley Hospital Emergency Room. (Id.)
7 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Upon arriving at the ER, the doctor’s notes state that Steven was feverish and his
eyes were veering to the left. (App. Tab 12 at PET-000069.) Within an hour of his
arrival, while still in the ER, Steven had a grand mal seizure.6 (Id. at PET-000073.) The
ER doctors gave him Valium and the seizure activity initially appeared to stop. But he
remained semi-conscious, his body stiffening at times followed by a crying sound. (Id. at
PET-000073-74.) This continued for the next few hours even though doctors
administered several more doses of Valium. (Id. at PET-000074.) Doctors ordered a CT
scan and chest X-ray, but both were read as negative. (Id. at PET-000069, 000075.)
Paradise Valley ER doctors arranged for Steven’s transfer and admission to PCH. (Id. at
PET-000069.)
5. Steven Spends Six Days at PCH
When Steven arrived at PCH, he was sedated and identified as postictal -- in an
altered state of consciousness brought on by his seizures. (App. Tab 13 at PET-000230.)
The doctor’s notes indicate that there were no lesions on his skin and that his fontanel was
soft.7 (Id. at PET-000230, 000243.) Steven’s pupils were sluggish and pinpoint and he
was feverish. Despite having already received five doses of Valium, he soon again began
having seizures. (Id. at PET-000231.) Doctors did not know the cause of Steven’s
seizures. (Id..)
Steven underwent an EEG that came back “[s]everely abnormal” and indicated that
he was having “massive” subclinical seizures, despite having been administered
Phenobarbital, an anti-seizure medicine. (Id. at PET-000238, 000267, 000285.) The EEG
suggested “a significant encephalopathy associated with underlying bihemispheric disease
and cortical abnormalities.” (Id. at PET-000285.) The reading doctor wrote that these
findings could be attributable to an infectious or metabolic process or could indicate an
6 A grand mal seizure is a significant seizure typically characterized by a loss of consciousness and violent muscle contractions.7 A baby Steven’s age has soft areas in his skull where the cartilage between skull bones has not yet hardened. These areas are called fontanels. When a fontanel hardens, bulges, or feels “full” to the touch that is a sign that there may be increased intracranial pressure and/or a build-up of blood or fluid.
8 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
anomalous central nervous system. (Id.) Steven also underwent a lumbar puncture, which
came back normal. Based on this result, doctors ruled out infection, homed in on a
structural abnormality as the most likely cause of Steven’s seizures and ordered an MRI.
(Id. at PET-000239.) Steven was transferred to the pediatric intensive care unit. (Id. at
PET-000238.) During the night, the oxygen level in Steven’s blood repeatedly declined.
The doctors believed that this indicated Steven was continuing to suffer repeated
subclinical seizures. (Id. at PET-000234, 000244.)
Steven improved somewhat on May 3 and, after the nurses noted that he had no
seizures on the night of May 3, on the morning of May 4, 2000, the PCH doctors
determined that Steven was doing well enough to be transferred out of the intensive care
unit. The nurse’s transfer notes from that morning, however, state that Steven was
“sluggish,” had manifested a “high-pitched” “neuro cry,” and had “pinpoint pupils” that
were thought to be secondary to seizure activity. (Id. at PET-000245-47, 000334.) The
nurse noted, however, that, “[i]n between episodes,” Steven was smiling and cooing. (Id.
at PET-000246.) The nurse on duty also documented that Steven’s fontanel had changed
and was now full, but the doctors did not document their response to the change in
fontanel. (Id. at PET-000334.) An EEG ordered the morning of May 4 confirmed
continued seizure activity. (Id. at PET-000247.) Additionally, Steven was noted to have
an ear infection as well as a heart murmur that previously went undetected. (Id. at PET-
000216, 000218, 000245, 000247.)
On May 5, while still at the hospital, Maria told the doctors that Steven did not
have the same head control as he had before, that his cry was different, and that he did not
track with his eyes as he had before. (Id. at PET-000248.) The doctor noted Maria’s
comments, but nonetheless stated that there were “no new issues.” (Id..) Steven was put
on ceftriaxone to rule out sepsis. (Id..) Steven underwent another EEG which was read as
mildly abnormal, consistent with a postictal state or mild encephalopathy.8 (Id. at PET-
8 The term “encephalopathy” means a disorder or malfunction of the brain.
9 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
000292.) Although this was a significant improvement over the May 2 EEG, the
reviewing doctor noted that clinical observation was still warranted. (Id..)
May 6 was relatively uneventful, and Steven was discharged the following day, a
Sunday. (Id. at PET-000223-24, 000252.) Maria was instructed to take Steven to his
pediatrician on Tuesday and to continue giving him amoxicillin over the next 6 days and
Phenobarbital until a neurologist instructed otherwise. (Id. at PET-000224.) Maria also
was told to “go to the nearest emergency department if [Steven] has seizures with lethargy
or respiratory difficulty.” (Id..) Maria was to follow up with Steven’s neurologist “in four
to six weeks.” (Id. at PET-000224, 000368.) Sadly, Steven would not live to make that
appointment.
6. Steven Continues Unwell After His Discharge from PCH
The day after he was discharged by PCH, Steven’s eyes began twitching back and
forth again and his pupils would pinpoint, like they did in the hospital when he was having
a seizure. Maria called the PCH Emergency Room to ask whether this was a side effect of
the Phenobarbital. (App. Tab 25 at 50:11-18.) Two days following Steven’s discharge
from PCH, Maria brought Steven to his pediatrician as directed. The pediatrician noted
Steven’s hospital stay for seizures and the possibility of an unproven sepsis infection.
Maria was told to follow up with the neurologist as scheduled and to hold off on further
immunizations until cleared by the neurologist. (App. Tab 10 at PET-000200.)
Steven was never the same again. He would have better days and worse days, but
he was never a normal, healthy child. (Id. at 52:19-53:3.) Maria continued to call
Steven’s pediatrician and PCH to ask if Steven’s worrisome behavior was a normal effect
of the strong medications he was taking. (Id. at 50:11-18.) Steven’s maternal
grandmother observed that Steven was sick all the time during the month of May,
repeatedly throwing up. (Id. at 98:8-17.) Maria’s neighbor, a former nurse, also saw that
Steven had problems following his return home from PCH. (App. Tab 29 at 89:20-90:15.)
In the last two weeks of May, Steven’s health deteriorated. On Friday, May 26th,
Maria brought Steven back to his pediatrician. Steven had been feverish and projectile
10 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
vomiting since the previous Sunday (May 21) and as a result was not able to keep his food
or medication down. (App. Tab 25 at 51:13-52:18; App. Tab 10 at PET-000201.) The
pediatrician noted Steven’s seizure disorder, but found him to be well hydrated and in
good spirits and told Maria that his symptoms likely were being caused by the flu. (App.
Tab 10 at PET-000201; App. Tab 25 at 53:4-22.) He instructed Maria to monitor Steven,
continue on the course of antibiotics and Phenobarbital, and gave her information on oral
rehydration therapy due to the continued loss of fluids from vomiting. (App. Tab 10 at
PET-000201.) The pediatrician noted Maria’s request for a referral to a pediatric
neurologist; Maria had asked for one that would be covered by her insurance plan. (Id.;
App. Tab 25 at 59:15-60:3.)
Steven’s condition worsened. During the last week of May, he was very feverish
and his pupils again appeared pinpoint. He again had a high-pitched cry and had
difficulty sleeping. He could only stay asleep while holding onto Drayton or Maria’s
fingers. (App. Tab 25 at 60:4-14.)
On May 28th, Drayton placed Steven on the bed for a minute to grab dry cloths
following a bath. Drayton came back to find that Steven had rolled off the bed. (Id. at
56:17-57:5.) Drayton called Maria to tell her what had happened and, when she returned
home, they brought Steven to see their neighbor, a former nurse. (App. Tab 29 at 85:4-7.)
The neighbor examined Steven and determined that he had not been harmed by the fall.
(Id. at 85:8-86:8.)
On May 29 and 30, Maria made calls to PCH and her pediatrician, trying to figure
out if Steven’s condition was normal. Maria called Steven’s pediatrician again on
Tuesday, May 30, to tell him that Steven was still throwing up. The pediatrician
suggested that she follow up with the neurologist. When Maria reminded him that he was
supposed to refer her to a neurologist covered by her insurance, he promised to get back to
her that same day. The pediatrician, however, did not call her back with a referral. (App.
Tab 25 at 59:24-60:3.) On Wednesday, May 31, Steven was watched by a neighbor while
Maria was at work. Again, he vomited his food and medicine. (Id. at 61:22-62:6.)
11 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Maria’s mother was so concerned about Steven’s health that, on May 31, she brought
Maria a cross because she sensed that things were not right with Steven. (Id. at 99:22-24.)
7. Steven’s Seizures Return With Catastrophic Results
On June 1, 2000, Maria thought that Steven was doing better. He had half of a
Pediatric Pop and slept most of the day. (Id. at 63:1-6.) That afternoon Drayton drove
Maria to work while Steven slept in the back of the car. Maria called Drayton several
times to check on Steven. A little after 8:00 p.m., Maria again called to check on Steven
and Drayton told her that he thought Steven might be having a seizure because his eyes
were not normal and he was fussy. They agreed that Drayton would come pick her up at
work and they would take Steven to the hospital. (Id. at 64:7-65:6.) Drayton picked up
Maria, but Steven had a major seizure. Drayton told Maria to drive so that he could get in
the back seat and perform CPR on Steven. (Id. at 66:8-11.)
After approximately a thirty-minute drive, Drayton and Maria arrived at Paradise
Valley Hospital at approximately 9:15 p.m. and reported that Steven had had seizures and
stopped breathing. (App. Tab 14 at PET-000091.) According to the ER notes, when
Steven arrived he was pale and not breathing. (Id. at PET-000091-92.)
Doctors had tremendous trouble trying to resuscitate Steven. Dr. Farha Kahn
initially tried to intubate Steven, but records indicate that she had “some difficulty.” (Id.
at PET-000087.) Dr. Michael Haley was asked to assist her. At 9:20 p.m., Dr. Haley
inserted a tube into Steven’s trachea, he thought successfully, but Steven soon began to
look dusky. (Id.) A chest x-ray revealed severe hypoinflation, indicating the tube was not
in the right place. (Id. at PET-000087, 000097.) Dr. Haley reintubated Steven and
reported an initial good response, but Steven’s heart rate slowed and a chest x-ray
revealed that the tube again was displaced and in the esophagus. (Id.) At 9:55 p.m.,
Steven was intubated yet again and his vital signs stabilized. (Id.)
During this time, the hospital notes, in sequence, indicate: asystole heart rhythm
(Steven’s heart stopped), 4 doses of epinephrine given (to try to start his heart), recovery
of pulse, another asystole heart rhythm, ventricular fibrillation (grossly abnormal
12 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
heartbeat), another dose of epinephrine, followed by a notation of persistent unstable
pulse. (App. Tab 15 at PET-000385.) In total, it took approximately 32 minutes to get
Steven’s heart started again. (App. Tab 29 at 16:5-11.)
As the doctors at Paradise Valley Hospital prepared to transfer Steven to PCH, Dr.
Haley recorded that Steven was profoundly dehydrated. (App. Tab 14 at PET-000087.)
They placed a catheter in Steven, but no urine could be taken out. Doctors also made
multiple attempts to find a visible vein to insert a line into Steven’s external jugular, but
wrote that Steven’s “profound dehydration” made visualization of the veins impossible.
(Id. at PET-000087-88.)
Steven was diagnosed with cardiopulmonary arrest, profound dehydration,
probable metabolic acidosis, and possible sepsis. (Id. at PET- 000088.) Dr. Haley
expressed grave concerns regarding Steven’s prognosis because of the “significant risk of
brain injury secondary to dehydration, metabolic acidosis, and hypoxemia.”9 (Id.)
8. PCH Doctors Almost Immediately Suspect SBS
Steven was air-evac'd to PCH and arrived in grave condition at around 10:30 p.m.
(App. Tab 14 at PET-000093; App. Tab 15 at PET-000380.) Despite his extensive history
of medical problems, and despite the lack of any outward evidence that he had been
abused, within less than an hour of Steven’s arrival at PCH doctors suspected abuse.
Shortly after Steven arrived, Dr. Patricia Teaford assessed him and noted his
unresponsive condition and the presence of retinal hemorrhages. (App. Tab 15 at PET-
000385.) Because of the retinal hemorrhages, she immediately concluded that child abuse
needed to be investigated. (Id.) Steven’s CT scan came back with findings of bilateral
subdural hygromas,10 subdural hemorrhage, and cortical (outer part of the brain) damage.11
9 Hypoexemia is a reference to insufficient oxygen in Steven’s blood.10 To understand the medical history in this case requires one to understand the meaning and differences between subdural hemorrhage, subdural hematoma, and subdural hygroma. The brain itself is encased by a protective sac or membrane known as the dura. The subdural area is a reference to the extremely thin area between the brain and the dura. Subdural hemorrhage is thus blood found within the subdural area. When there is a pooling of blood in the area, it sometimes is referred to as a subdural hematoma. When there is cerebrospinal fluid in the subdural area, that is called a subdural hygroma.
13 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(Id. at PET-000389, 000430-31.) Although she noted the absence of any bruising on
Steven’s skin or head, Dr. Teaford concluded that non-accidental trauma was the probable
cause of Steven’s condition. (Id. at PET-000389.)
By 2:15 a.m., a social worker consult for suspected child abuse was ordered as was
a consult with a PCH child abuse expert. (Id. at PET-000403.) By 2:51 a.m., PCH filed a
report with Child Protective Services and the City of Phoenix Police had initiated their
criminal investigation. (Id. at PET-000427.) By 3:15 a.m., Phoenix police officers were
talking to Drayton and Maria in the hospital’s consultation room. (Id. at PET-000465.)
Detective Kathi Galbari, the detective who would take over the case, was called at home
at 3:45 a.m. by the homicide sergeant and told to report to PCH. (App. Tab 20 at 000008.)
The social worker showed up at 4:00 a.m., also noted the presence of retinal and subdural
hemorrhage, and wrote that Drayton and Maria could not provide any specific explanation
for Steven’s “severe head trauma.” (PET 0417, 465.) Detective Galbari arrived at the
hospital at 4:40 a.m. and was briefed by the officers who had already spoken to Drayton
and Maria. (Id.) Before speaking to Drayton and Maria, Detective Galbari and an
attending nurse conducted a visual inspection of Steven’s body. They found no visible
trauma. (Id. at 000009.)
Later that morning, at approximately 7:00 a.m., Dr. Emily Pollack, the PCH child
abuse expert, evaluated Steven and noted that his skin was normal, without bruising.
(App. Tab 15 at PET-000406, 000411.) She recommended a skeletal survey (to look for
old or new fractures or injuries) and an ophthalmology consult to examine the retinal
hemorrhages. (Id. at PET-000412.) The skeletal survey came back negative; there were
no old or new fractures or injuries on Steven’s body. (Id. at PET-000433.) The
ophthalmology consult never occurred.
11 Notably, Dr. Graham, another PCH doctor evaluating Steven, determined that Steven’s subdural effusions (of blood and fluid) were of different ages. (App. Tab 15 at PET-000393.) This observation -- which is evidence of an ongoing disease process -- should have been highly relevant to the analysis of what had happened to Steven but the other PCH doctors seemingly were unaware of Dr. Graham’s conclusion.
14 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dr. Kim Manwaring was called to conduct a neurosurgical consult. (Id. at PET-
000413-15.) He also examined Steven at approximately 7:00 a.m. and noted retinal
hemorrhages, a bulging fontanel, blood around the brain and “no bruising.” (Id. at PET-
000414.) He determined that these findings “are most consistent with shaken-baby
syndrome, plus or minus hypoxic injury.”12 (Id.) Dr. Manwaring recommended a consult
with Dr. Kaplan, a PCH neurologist who treated Steven during his hospitalization the
prior month. (Id.) The consult with Dr. Kaplan never occurred.
That same morning, law enforcement busily gathered evidence of the “crime.”
Officers seized Drayton and Maria’s car in the hospital parking lot and prepared an
affidavit of search warrant. (App. Tab 15 at PET-000456, 000475, 000481.) The search
warrant was signed at 10:09 a.m. and officers arrived at Drayton and Maria’s home at
11:24 a.m., pried the screens off of the windows, then went through the back door and
began photographing the home and removing property. (App. Tab 19 at 000024; App.
Tab 18.)
Steven was declared brain dead at 11:45 a.m. (App. Tab 15 at PET-000394,
000475, 000456, 000481.) Drayton and Maria spent Steven’s last few hours by his side,
then life support was removed and Steven passed away in his mother’s arms at 3:30 p.m.
Within the hour, the County Attorney and CPS were together preparing homicide charges
against Drayton.
There is no evidence that PCH ever spent any meaningful time looking at potential
alternative diagnoses such as, for example, venous thrombosis, sinus thrombosis, stroke,
clotting disorders, genetic issues or any of numerous other disorders. Steven had retinal
hemorrhages and subdural bleeding -- that apparently was enough for the PCH doctors at
the time to declare Steven to have been murdered by violent shaking and to turn the matter
over to the medical examiner.
12 The term “hypoxic injury” refers to injury to the brain caused by a lack of oxygen.
15 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9. Steven’s Autopsy
Steven died on June 2, 2000. Dr. Mosley of the Maricopa County Medical
Examiner’s Office conducted his autopsy the next day. Before he began his autopsy, Dr.
Mosley knew that doctors at PCH believed that Steven’s death was the result of SBS.
(App. Tab 16 at PET-000121.) He understood he was to page Detective Galbari before
beginning the autopsy. (Id. at PET-000139.) The police were present during the autopsy
and photographed the findings. (App. Tab 27 at 79:14-17.) Dr. Pollack, the PCH child
abuse expert, attended the brain cutting portion of the autopsy. (Id. at 101:18-102:2.)
During the autopsy, Dr. Mosley noted that there were no signs of trauma on
Steven’s body. (See, e.g., id. at 80:18-22.) Nor was there any sign of neck injury:
“Examination of the soft tissues of the neck, including strap muscles and large vessels,
reveals no abnormalities.” (App. Tab 16 at PET-000123.) Nor was there bruising or
lesions on the brain or spinal cord. (Id. at PET-000122-23, 000125.) However, Dr.
Mosley found subdural hemorrhage, retinal hemorrhages, perioptic nerve hemorrhages,
cerebral edema (brain swelling), left occipital subarachnoid hemorrhage, and hemorrhage
in Steven’s cervical spinal canal. (Id. at PET-000120.) (App. Tab 16 at PET-000140.)
Dr. Mosley concluded that Steven’s death was a “HOMICIDE” caused by
“SHAKEN/IMPACT SYNDROME.” (App. Tab 16 at PET-000118.)
Drayton was then charged with murdering his son.
B. Drayton’s Trial
1. The State’s Theory Was Entirely Premised on SBS
The State’s case against Drayton was a medical one based on SBS. From the
State’s opening statement:
On June 2nd, Steven Witt died. He died as a result of violent, severe shaking, which caused bleeding on the surface of his brain, brain swelling, bleeding in the retinas, behind the retinas of his eyes, and bleeding to the optic nerve that connects the eyes to the brain.
16 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(App. Tab 25 at 25:3-8) (emphasis added.) The State then called several physicians to
testify about SBS and how they could tell from findings in the medical records and
autopsy report that Steven had been violently shaken.
a. Dr. Emily Pollack
On the second day of trial, the State called Dr. Pollack – the PCH child abuse
expert. Dr. Pollack testified that she was called sometime after midnight to conduct a
child abuse consult. (App. Tab 26 at 16:3-8.) Dr. Pollack testified that she found retinal
hemorrhages and that such hemorrhages indicate child abuse. She proceeded to say that
many ophthalmologists would say that retinal hemorrhages are “not just indicative, but
diagnostic of child abuse.” (Id. at 18:22-19:22.) She also stated that Steven’s eyes
revealed that he had optic nerve sheath hemorrhages and that such hemorrhages were
caused by severe trauma. (Id. at 37:4-38:4.) Given the state of the science at the time,
Drayton’s trial lawyer did not seriously attempt to dispute these opinions about the eye
findings, but instead tried to discredit Dr. Pollack by demonstrating that Dr. Pollack did
not have the necessary expertise to determine the extent of Steven’s retinal hemorrhages.
(Id. at 73.)
Dr. Pollack also testified that Steven had subdural hemorrhage and cerebral edema.
(Id. at 24:9-25:5.) Dr. Pollack told the jury that Steven’s condition and findings meant
either child abuse or one particular metabolic disorder that she referred to as lysergic
aciduria. (Id. at 29:4-25.) When blood tests did not confirm lysergic aciduria, Dr. Pollack
stated that she was left with only one conclusion – child abuse. (Id. at 30:13-31:5.) At the
time of trial Dr. Pollack had not been practicing for about a year, but she said that, when
she was, she “average[d] one to two cases a month of infants who were fatally shaken.”
(Id. at 95.)
Additionally, Dr. Pollack testified about how shaking supposedly caused Steven’s
injuries. Specifically, she explained that it was her belief that when an infant is violently
17 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
shaken, the brain strikes back and forth against the front and back of the cranium.13 (Id. at
32:1-3.) This whiplash shaking action, she explained, eventually causes the tearing of
bridging veins that run on the outside of the brain (thereby causing hemorrhage) and of
neurons inside the brain (leading to brain damage and swelling). (Id. at 32:15-22.)
Dr. Pollack told the jury that after Steven was violently shaken, “[h]e would have
immediately been rendered unconscious.” (Id. at 33:10-11.) This unconsciousness would
have been “followed pretty rapidly by cardiovascular collapse.” (Id. at 33:20.) According
to Dr. Pollack, because Steven would have been comatose immediately following the
shaking, the shaking must have occurred while Steven was in Drayton’s care, following
his last feeding at around 8:00 p.m. (Id. at 34:9-12.)
After Dr. Pollack’s testimony, the jurors had questions. One juror asked if hitting
one’s head can cause retinal hemorrhages. Dr. Pollack responded, “Yes it can if it’s
severe injury, on the magnitude of a car accident. They have been reported in massive
head injuries after things like car accidents.” (Id. at 101:5-8.) Finally, despite a complete
lack of any evidence in the autopsy or in the PCH records, Dr. Pollack told the jury that
the bridging veins in Steven’s brain were, in fact, stretched or torn. (Id. at 105:23-25.)
b. Dr. Michael Haley
Dr. Haley, the Paradise Valley Hospital emergency room physician, testified that
Steven was very dehydrated when he saw him. He explained that Steven’s lips were dry,
his eyes were sunken, and his skin was mottled -- all likely caused by dehydration. (App.
Tab 27 at 45:9-20.) Dr. Haley also stated that when a child presents with subdural
hematoma, retinal hemorrhages, and massive cerebral edema, he would be concerned
13 In 2002, this was a common description of the SBS mechanism -- that shaking, through its whiplash mechanism, causes the brain to move within the skull and hit the cranium. It later was pointed out that, in cases of whiplash sufficient to cause intracranial injury, the brain typically slides forward and/or back and impacts the cranium, leaving the brain with contusions or focal lesions -- findings not found in most SBS cases or in Steven’s case. See Talbert, Shaken Baby Syndrome: Does It Exist?, 72 MEDICAL HYPOTHESES 131, 133 (2009) (“The SBS definition is internally inconsistent. The condition cannot be due to shaking if subdural bleeding is found in the absence of contusional damage as appears in the definition.”.) As noted, no bruises or lesions were found visibly or microscopically on Steven’s brain.
18 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
about trauma such as shaking. (Id. at 47:13-19.) He concluded that Steven’s injuries
could have been the result of severe shaking. (Id. at 48:2-4.)
c. Dr. A.L. Mosley
Dr. Mosley, the medical examiner, testified that Steven’s condition exhibited the
classic characteristics of Shaken Baby Syndrome and that the presence of subdural blood
indicated traumatic injury. (Id. at 95:5-96:6.) He stated that, based on his training and
experience, the subdural blood found around Steven’s brain was caused by violent
shaking. (Id. at 85:17-86:1.)
Dr. Mosley also told the jury that Steven’s subarachnoid hemorrhage14 and the
hemorrhage along his spinal canal were traumatic findings. (Id. at 90:18-91:1, 93:5-21.)
He agreed with Dr. Pollack that during shaking the brain hits the inside of the skull,
causing an impact and associated injury (id. at 95:16-18), even though Dr. Mosley
admitted that he saw no evidence that Steven’s brain had been impacted (id. at 128:16-
18). He also insisted that Steven likely had brain injury caused by the shearing of the
brain’s neurons, but he admitted he did not actually see any evidence of this. (Id. at
135:2-18.)
Dr. Mosley concluded that the combination of retinal, optic nerve sheath,
subarachnoid subdural hemorrhage, and cerebral edema meant SBS, “based on what I’ve
read, [and] the fact that I couldn’t find another doctor who could tell me another
explanation for that constellation of symptoms.” (Id. at 121:21-23.)
d. Dr. Kim Manwaring
Dr. Manwaring, the PCH neurosurgeon who assessed Steven, testified that the
presence of cerebral edema, bleeding around the brain, and the retinal hemorrhages seen
in Steven’s eyes caused him to believe that Steven’s death was caused by SBS. (App. Tab
28 at 38:18-21.) Although not an eye doctor, Dr. Manwaring testified that retinal
hemorrhages have a characteristic appearance depending on what caused them and that
14 The arachnoid is a very thin membrane on the surface of the brain. Subarachnoid hemorrhage is bleeding into the space between the brain and the arachnoid.
19 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Steven had a particular type of retinal hemorrhage, which he described as large globules
of blood with sharp edges. He told the jury that this particular type of retinal hemorrhage
“almost assuredly” is brought on by severe flexion and extension or shaking. (Id. at
22:17-24.) He said that, outside of shaking, the “other way” that they “can be created is a
severe high-speed car injury.” (Id. at 22:25-23:5.) He stated “I have seen them extremely
rarely, outside of the instance of shaken baby syndrome, in severe head-on car accidents.
Not rollovers, severe car accidents.” (Id..)
Dr. Manwaring further stated that shaking causes the brain to move “back and forth
within the cranium” and that Steven would have been rendered immediately unresponsive
and unable to feed following the shaking. (Id. at 28:18-25, 30:10-31:2.) Dr. Manwaring
testified that he had treated “perhaps a hundred” children with SBS. (Id. at 8:16-20.)
e. Dr. Patricia Teaford
Dr. Teaford, the PCH intensivist who treated Steven the night before he died,
testified that, when she first examined Steven, she saw retinal hemorrhages, which caused
her immediately to suspect SBS. (App. Tab 29 at 19:12-17.) In fact, according to Dr.
Teaford, whenever she sees bleeding on the brain and retinal hemorrhages, she is
predisposed to believe that the cause is child abuse unless it is proven not to be. (App.
Tab 29, 48:1-9.)
After seeing the retinal hemorrhages, Dr. Teaford testified that she ordered a CT
scan which revealed cerebral edema and bleeding around the brain – confirming for her
that this was a traumatic injury. (Id. at 20:16-21.) Dr. Teaford thus testified that she knew
Steven’s medical history, including his history of seizures, resuscitation, dehydration,
vomiting, lethargy, constipation, difficult birth, infection, and the fall from his parents’
bed, but did not consider any of these facts in reaching her SBS diagnosis: “He came in
with really a catastrophic, unexplained event with little history to support it.” (App. Tab
29 at 19:12-23.)
Dr. Teaford incorrectly testified that retinal hemorrhages have different
appearances depending on the different mechanisms; those caused by CPR, she
20 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
contended, are tiny and pinpoint while those caused by shaking are big. (Id. at 52:17-
53:4.) Dr. Teaford testified that, after suspecting abuse, she called in Dr. Manwaring, the
neurosurgeon, Dr. Pollack, the child abuse expert, and ensured that CPS and law
enforcement were notified. (Id. at 20:22-21:16.) She told the jury that Steven’s death was
caused by “a very violent, high velocity acceleration-deceleration injury that [she] would
equate with a patient who’s been in a high-velocity motor vehicle accident.” (Id. at 29:16-
18.) Dr. Teaford also testified that Steven’s cascade of injuries were caused when the
shaking tore the bridging veins around Steven’s brain. (Id. at 30:4-7.)
Dr. Teaford told the jury that she did not know a single pediatrician who did not
believe it was possible to shake a baby to a similar degree as the force present in a violent
car accident. (Id. at 47:17-20.) Notwithstanding her claim that shaking must be very
violent to cause such injuries, when asked whether in cases she diagnoses as SBS it is
typical to see external signs of trauma, she said that it is “usual not to.” (Id. at 29:19-22.)
2. Drayton Could Not Muster An Adequate Rebuttal to the State’s Medical Testimony in 2002
Drayton called a single expert during the trial, Dr. Karen Griest. Unable to
confront the SBS diagnosis head-on due to its then-general acceptance within the pediatric
community, Dr. Griest focused on Steven’s profound dehydration as a potential cause for
the constellation of injuries found at the time of his death. (App. Tab 30 at 15:24-17:21.)
Dr. Griest did not dispute the theory that torn bridging veins can lead to significant brain
injury, but she testified that those veins are more likely to rupture in a dehydrated baby
with a shrunken brain. (Id. at 41:18-42:13.)
3. The SBS Testimony Allows the Case to Go to the Jury
At the close of the State’s case, Mr. Witt’s attorney moved for a directed
verdict. He argued that the expert medical testimony was inconsistent and that
there was a distinct lack of physical evidence or visual observation to support a
verdict that Steven had been violently abused. The court denied the motion,
21 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
noting the expert SBS testimony. (App. Tab 29 at 58:7-15.) The jury convicted
Drayton of second-degree murder. He received a sentence of 20 years.
C. Drayton’s Conviction Is Vacated
“You keep screaming. Eventually, someone will hear you.”
-- Drayton Witt15
Despite his conviction, Drayton always maintained his innocence. Eventually, with
pro bono help from the Arizona Justice Project, he submitted a Rule 32 petition for post-
conviction relief. In his petition, he argued that the SBS theory had unraveled since his
conviction. His petition was supported by sworn testimony from leading experts in the
fields of neuropathology, neuroradiology, neurosurgery, forensic pathology,
ophthalmology, and biomechanics, all of whom testified there is no medical evidence that
Steven was abused.
Based on the change in understanding about SBS, even Dr. Mosley -- the medical
examiner who declared Steven’s death an SBS homicide -- stated that he now believes
Steven died of natural causes. In 2002, Dr. Mosley testified that his 2000 SBS diagnosis
was correct “based on what [he’d] read” and “the fact that [he] couldn’t find another
doctor who could tell [him] another explanation for [Steven’s] constellation of symptoms.”
In 2012, however, based on his review of “an expansive body of post-2000 SBS literature,
as well as the significant developments in the medical and scientific community’s
understanding of SBS and several of the conditions that mimic SBS,” he believes that
“Steven’s death was likely the result of a natural disease process.” (App. Tab 6 ¶ 10.) The
changes in science have been significant enough to cause the medical examiner to
completely reverse his medical conclusion.
In addition, several of the physicians explained why Steven’s medical records
indicate that his death may have been caused by complications from a condition called
venous thrombosis. With the petition, and again with this motion, we submit declarations
15 Ruelas, New Doubts in ‘Shaken Baby’ Fatalities, ARIZONA REPUBLIC, Sept. 16, 2012, at A1.
22 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
from Drs. Plunkett (a forensic pathologist), Squier (a neuropathologist), and Barnes (a
pediatric neuroradiologist), that Steven’s medical history and autopsy findings strongly
point to venous thrombosis as the cause of his death.
In his declaration, Dr. Plunkett explains venous thrombosis:
[S]ince 2000, it has become increasingly well-established that the differential diagnosis in cases such as Steven’s include[s] . . . venous thrombosis (‘VT’), . . . a form of childhood stroke that is difficult to detect and, at least previously, was under-diagnosed. It has symptoms that mimic so-called SBS symptoms. In the case of VT, a vein becomes blocked and the blood that usually drains away from the brain cannot get out. As a result, it backs up into the tissues, prevents fresh blood from getting in, and the brain cells die; areas of such brain cells are called infarcts. The cascade of intracranial events caused by the thrombosis and corresponding infarcts can be hemorrhage, edema, and the development of hypo-ischemic areas (parts of the brain that do not receive enough oxygen or have abnormal blood flow to work properly but are not dead).
VT (“childhood stroke”) is described on the [PCH] website, which notes that causes of such strokes may include infection, dehydration or other causes. The website correctly identifies the most common sign of such strokes to be “seizure.” Other common signs include “Severe headache, possibly with vomiting,” “Visual problems,” and “Decreased alertness or sleepiness.”
(Plunkett Dec. ¶¶ H, I (App. Tab 7); see also Squier Dec. ¶¶ 4-6 (App. Tab 8) (explaining
venous thrombosis); Krasnokutsky, Cerebral Venous Thrombosis: A Potential Mimic of
Traumatic Brain Injury in Infants, 197 ROENTGEN 503 (Sept. 2011) (App. Tab 46) (noting
that most studies on VT have been done in last 10 years and that the underlying causes of
VT “are numerous, with infection and dehydration as the most common causes”).
Dr. Squier has published on the two distinct types of cerebral venous thrombosis,
which together she refers to as CVST. She summarizes CVST as follows:
Radiological studies show . . . bleeding, including subdural, subarachnoid and subpial haemorrhage and subdural effusion in association with CVST. . . . There is a striking male predominance (up to 75%) in infant CVST. Clinical diagnosis is difficult in infants; at least 10% of babies are asymptomatic, and others have non-specific presentation including depressed consciousness, lethargy, poor feeding, vomiting or seizures.
23 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Venous thrombosis is associated with a number of common illnesses. 75% have infection . . . 4% recent head trauma.
(Squier, The “Shaken Baby” Syndrome: Pathology and Mechanisms, ACTA NEUR. 1, 15-
17 (2011) (App. Tab 56).)
Venous thrombosis is an alternative, and probable, explanation for Steven’s death
that was neither ruled in nor ruled out by the State’s expert witnesses. First, Steven’s
symptoms almost perfectly fit the clinical criteria for venous thrombosis just described.
He was a male, with a history of lethargy, visual abnormalities, vomiting, dehydration,
infection, and seizures.
Second, it appears undisputed that the bleeding and cerebrospinal effusion around
Steven’s brain began well before his collapse on June 1, 2000. This was recognized by a
physician at PCH who did not testify at Drayton’s trial and who does not appear to have
been consulted by the other PCH physicians. (See supra n. 11.) Moreover, Dr. Squier
examined brain tissue preserved at Steven’s autopsy. She explains that Steven’s infarction
(area of dying brain tissue) was old -- predating his death by at least 3 to 7 days. “This
indicates that something was happening in Steven’s brain days before his collapse.” (Ex.
8, Squier Dec. ¶ 5.) Similarly, Dr. Plunkett arranged for iron-staining on slides of blood
and dura taken at Steven’s autopsy and confirmed there were iron-positive macrophages
within them. This indicates “that the process that was causing the subdural bleeding began
significantly before June 1, 2000.” (Ex. 7, Plunkett Dec. ¶ 18(D).) Dr. Barnes, in the
course of recording observations during a blind review of Steven’s CTs and MRIs (i.e., a
review done before he knew what other doctors had said or had looked at the medical
records), noted that Steven’s May 3 MRI at PCH, rather than being normal as the reading
doctor at PCH claimed, actually shows “subtle asymmetric swelling, right more than left.
Also, there may be small amounts of extracerebral small bleeding or small clots. This
could be an indication of a venous thrombosis . . . .” (Ex. 1, Barnes Dec. ¶ 14.) He goes
on to note, again during his blind review, that the hygromas that appear on Steven’s June 2
24 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MRI “are grey dark which indicates that they are older, not acute. The recent hemorrhage
is extracerebral, white, and multifocal, which is a sign of venous thrombosis.” (Id. ¶ 17.)
Third, the autopsy findings strongly support a finding of venous thrombosis. In
particular, autopsy photograph 17 (App. Tab 16 PET-000140), “shows a thrombosed
superficial cortical vein” on the right side of Steven’s brain being held in a gloved hand.
(Ex. 7, Plunkett Dec. ¶ 18(f)); accord Ex. 1, Barnes Dec. ¶¶ 19-20; Ex. 8, Squier Dec. ¶ 5.)
Again, thrombosis events are generally triggered by and associated with infections,
dehydration, vomiting, clotting problems and seizures -- not trauma.
After taking months to review the petition, the State conceded that Drayton had
submitted evidence sufficient to warrant vacating his conviction. The Court vacated the
conviction on May 1, 2012, and Drayton was subsequently freed.
Unfortunately, without ever providing any explanation to either the Court or the
defense about why it believes SBS remains a reliable theory in this case, or about how its
experts can rule out venous thrombosis as a potential cause beyond a reasonable doubt, the
State insists on a retrial.
III. The State’s SBS Testimony Must Be Precluded
The State carries the burden to prove Drayton caused Steven’s death,16 and here the
State’s only evidence of causation is the testimony of the PCH doctors that it is their
belief, based solely on Steven’s medical findings, that Drayton must have shaken Steven
violently enough to kill Steven without leaving a single mark on his body. Because the
causal connection is not “readily apparent to the trier of fact” and there is no other
evidence that will satisfy the State’s burden of proving that Drayton caused his son’s
death, the “causal connection between [the alleged] act or omission and the ultimate injury
[must be proven] through expert medical testimony.” Barrett v. Harris, 207 Ariz. 374,
16 “Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (S. Ct. 1970) (emphasis added).
25 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
378 (App. 2004); cf. Claar v. Burlington N.R.R. Co., 29 F.3d 499, 503-04 (9th Cir. 1994)
(affirming the district court’s grant of summary judgment following plaintiff’s failure to
proffer admissible expert testimony on the issue of causation).
When Drayton was tried in 2002, Arizona followed the Frye/Logerquist “general
acceptance test,” under which only new scientific methods were subjected to judicial
scrutiny. As a result, the opinions of the PCH doctors who testified for the State in
Drayton’s first have never been vetted for reliability. But the State cannot shield its faulty
science from scrutiny any longer.
This year, the Arizona Supreme Court amended Arizona Rule of Evidence 702 to
conform to its federal counterpart. ARIZ. R. EVID. 702 cmt. “The amendment recognizes
that trial courts should serve as gatekeepers in assuring that proposed expert testimony is
reliable and . . . helpful to the jury’s determination of facts at issue.” (Id.) New Rule 702
now allows expert testimony to be admitted only if: (1) such testimony is reliable, that is,
“based on sufficient facts or data” and “the product of reliable principles and methods;”
(2) such testimony is relevant, meaning that the expert has “reliably applied those
principles and methods to the facts of the case;” and (3) the expert has “specialized
knowledge [that] will help the trier of fact to understand the evidence or to determine a
fact in issue.” ARIZ. R. EVID. 702. Unlike the prior Frye/Logerquist rule, new Rule 702
requires that all manner of expert testimony, whether based “upon professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999); accord McClain v. Metabolife Int'l, Inc., 401 F.3d
1233, 1237 (11th Cir. 2005).
A. The State’s Medical Evidence Must Be Excluded Because SBS Is an Unreliable, Unproven, and Highly Controversial Hypothesis
Baby Steven was sick his whole life. He had a documented history of serious
neurologic problems, including seizures. He had intracranial bleeding and pathology that
predated his collapse by at least several days. When he died, his body had no bruises, grip
26 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
marks, crush injuries, or broken bones. Yet, the State claims that medical science proves
beyond a reasonable doubt that he died because his father violently shook him. Not so.
Instead, SBS is a controversial scientific hypothesis that has yet to be validated. It
is a medical diagnosis with no precise criteria and no known rate of error. It is a
hypothesis about one possible explanation -- with dozens of known alternative causes --
for the triad of clinical findings associated with the diagnosis. It is a supposition of how
certain injuries might occur that is now known to be at odds with biomechanical science,
pediatric neurology, and ophthalmology. SBS is no longer generally accepted, particularly
in cases where there is no other evidence of abuse. It is a white-hot controversy being
debated in medical, scientific, legal, and social publications, where new information has
caused even its founder and the medical examiner in this case to come forward to say that
SBS is not a reliable diagnosis here.
To determine whether proffered medical causation testimony is reliable, Courts
look to the following non-exclusive factors: (1) whether the method or technique has
been tested; (2) whether the method or technique has been subjected to peer review and
publication; (3) the potential or known rate of error; and (4) whether the method or
technique is generally accepted within the relevant scientific community. Daubert I, 509
U.S. at 593-94. In addition, “[o]ne very significant fact to be considered is whether the
experts are proposing to testify about matters growing naturally and directly out of
research they have conducted independent of the litigation, or whether they have
developed their opinions expressly for purposes of testifying.” Clausen v. M/V New
Carissa, 339 F.3d 1049, 1056 (9th Cir. 2003) (citing Daubert v. Merrell Dow Pharms.,
Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (“Daubert II”)); see also Snyder v. Sec’y of HHS,
No. 01-162V, 2009 WL 332044 (Fed. Ct. 2009).
The role of the Court in conducting a Daubert reliability analysis of proposed
expert testimony is to ensure that the expert’s opinions are based on scientifically valid
methods and principles. To be admissible, “it is critical that an expert’s analysis be
reliable at every step.” Amorgianos v. Amtrak, 303 F.3d 256, 267 (2d Cir. 2002).
27 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Accordingly, “any step that renders the analysis unreliable under the Daubert factors
renders the expert’s testimony inadmissible.” In re Paoli R.R. Yard Pcb Litig., 35 F.3d
717, 745 (3d Cir. 1994) (emphasis original).
Viewed under any of the Daubert factors, SBS is unreliable. It “evolved as a result
of faulty application of scientific reasoning and a lack of appreciation of mechanisms of
injury.” Uscinski, Shaken Baby Syndrome: An Odyssey, 46 NEUROL. MED. CHIR. 57
(2006) (App. Tab 58) (emphasis added). As a result, the hypothesis that shaking alone
could cause the triad of clinical findings that led to Steven’s death -- whether cloaked
under the new moniker “abusive head trauma,” SBS, or some other name -- is based on
faulty scientific principles and lacks sufficient facts and data and the testimony must be
excluded.
1. SBS Has Never Been Validated By The Relevant Scientific Communities
The SBS hypothesis was first raised in a 1971 article by Dr. A. Norman Guthkelch,
a pediatric neurosurgeon. Dr. Guthkelch cited a 1968 whiplash study involving adult
rhesus monkeys and also discussed two patients of his that had subdural hematomas yet no
sign of head trauma -- in one, the mother said she had shaken her infant when he was
having a coughing fit and she feared he was choking; in the other, the infant had grip
marks and the mother said that she “might have” shaken him when he cried at night. (Id.
at 431.) From the 1968 Ommaya study and his two case reports, Dr. Guthkelch
hypothesized that infants might sustain whiplash-type injuries, including subdural
hematoma, from being violently shaken. Although not yet called SBS, the shaking
hypothesis was born.
In 1972 and 1974, famed pediatric radiologist and textbook author John Caffey
published two articles about the potential dangers of shaking infants. In the first article,
Dr. Caffey collected instances of what he deemed “convincing” examples of children who
had suffered brain injury as a result of shaking, most of which came from a Newsweek
article about a nurse who had confessed to abusing children in her care. (App. Tab 37 at
28 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
163.) In the second article, Dr. Caffey cited the 1968 Ommaya study for the proposition
that shaking infants could cause subdural hemorrhage. In addition to causing subdural
hemorrhage, he speculated that shaking damaged capillaries within the retina, as he had
seen retinal hemorrhages in children he thought had been abused. 54 PEDIATRICS at 401
(App. Tab 38). Although he admitted that his data set was “meager” and “manifestly
incomplete,” he broadly concluded that the evidence “indicates that manual whiplash
shaking of infants is a common primary type of trauma in the so-called battered infant
syndrome. It appears to be the major cause in these infants who suffer from subdural
hematomas and intraocular bleedings.” 54 PEDIATRICS at 402 (App. Tab 38).17
Dr. Caffey ended his article by calling for a “nationwide educational campaign”
that he said could be summarized by the following stanza:
Guard well your baby’s precious head,Shake, jerk and slap it never,Lest you bruise his brain and twist his mind,Or whiplash him dead forever.
Id. at 403.
Notwithstanding that Dr. Guthkelch expressly was offering merely a hypothesis
about one possible cause of subdural hematoma in infants,18 and that Dr. Caffey reached
his conclusions based on evidence that even he acknowledged was “meager” and
“manifestly incomplete,” but propelled by a nationwide campaign highlighting the dangers
of shaking infants, the SBS hypothesis rapidly gained “acceptance and enormously 17 In a passage that perhaps should have caused Dr. Caffey pause but which only later would be recognized as somewhat chilling, Dr. Caffey noted that children who presented with subdural hematoma and no external evidence of trauma -- children that he assumed had been shaken -- often had histories of vomiting, hyperirritability, infection, stupor, birth trauma, fever, bulging fontanel, anemia, enlarged head, and abnormal ocular fundi. Caffey, 54 PEDIATRICS at 400 (App. Tab 38.) It is now well accepted that these symptoms turn out to be associated with several non-traumatic neurological conditions that mimic the intracranial conditions supposedly caused by SBS. 18 “I am aware that my 1971 article has been cited by doctors and researchers in support of a prosecutorial suggestion that babies who have subdural hematoma, retinal hemorrhages, and brain swelling can be assumed to be suffering from ‘Shaken Baby Syndrome,’ even though there are no other signs of abuse. However, I consider that this is a distortion of the article I wrote in 1971 . . . . [T]here was not a vestige of proof when the name was suggested that shaking, and nothing else, caused the triad.” Ex. 4, Guthkelch Dec. ¶¶ 3-4 (emphasis added).
29 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
widespread popularity, with no real investigation or even question as to its scientific
validity.” Uscinski, Shaken Baby Syndrome: An Odyssey, 46 NEUROL. MED. CHIR. 57
(2006) (App. Tab 58) (emphasis added).19
By 2000, when the PCH physicians and the medical examiner “diagnosed” Steven
as an SBS victim, hardly anyone openly questioned the existence and reliability of SBS,
even though science had not yet validated the hypothesis. In the 1980s and 1990s, dozens
of articles that merely presumed the existence and validity of the SBS hypothesis filled
the medical literature, and physicians (particularly pediatricians and ER doctors) were
trained to diagnose SBS based on the triad of findings.
Indeed, prior to 2002, the medical community followed the dogma of SBS largely
without question. Dr. Barnes explained that at the time he testified for the Louise
Woodward prosecution in 1997, “doctors practiced what I call authoritarian medicine.
We were told what certain symptoms meant, and we didn’t question whether the
authorities were right. When we saw bleeding in the brain (subdural hematoma or SDH)
and bleeding in the eyes (retinal hemorrhages or RH), we were taught, and so we
assumed, that the child had been violently shaken and that the last caregiver with the baby
must have done the shaking.” (Ex. 1, Barnes Dec. at ¶ 3.)
But, in about 1999, the medical community embraced what is called the Evidence-
Based Medicine (EBM) movement, which sought to ensure that medical practice was
based on the best available medical and scientific evidence, as opposed to over-reliance on
anecdote and historic practice. (See, e.g., id. ¶ 4.) A key part of the EBM movement was
the promulgation of criteria to gauge the reliability of the evidence upon which particular
medical practices and diagnoses rested, with Level I being the highest/most reliable
evidence and Level IV being the lowest/least reliable.
After some physicians began to question whether the SBS hypothesis met EPM
standards, Dr. Mark Donohoe, in a 2003 article, compiled the SBS literature through 1998 19 As discussed infra in section V(A)(2)(c), the neurosurgeon-trained scientist who conducted the biomechanical study that Drs. Guthkelch and Caffey relied upon later detailed why his study does not actually support the SBS hypothesis.
30 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and then classified it against those standards. His conclusions were startling. Although
there were 55 published articles on SBS, none exceeded Level III-2, “which means that
there was inadequate scientific evidence to come to a firm conclusion on most aspects
of causation, diagnosis, treatment, or any other matter pertaining to SBS.” Evidence-
Based Medicine and Shaken Baby Syndrome Part I: Literature Review, 1966-1998, 24
AM. J. FORENSIC MED. PATH. 239, 241 (2003) (emphasis added) (App. Tab 39). Dr.
Donohoe concluded that “there was an urgent need for properly controlled, prospective
trials into SBS, using a variety of controls. Without published and replicated studies of
that type, the commonly held opinion that the finding of SDH [subdural hematoma]
and RH [retinal hemorrhage] in an infant was strong evidence of SBS was
unsustainable, at least from the medical literature.” Id. (emphasis added).20
In 2006, Dr. Jan Leestma, a neuropathologist at the Children’s Memorial Hospital
at Northwestern University, lamented that the medical community’s immediate acceptance
of SBS had resulted in a lack of studies into other potential causes of the SBS triad of
findings, even while SBS itself remained unproven:
It should be apparent that from virtually every perspective many flaws exist in the theory that shaking is causative. No case studies have ever been undertaken to prove even a partial list of possible confounding variables/phenomena, such as the presence of intracranial cysts or fluid collections, hydrocephalus, congenital and inherited diseases, infection, coagulation disorders and venous thrombosis … or recent or remote head trauma.
Leestma, “Shaken Baby Syndrome”: Do Confessions by Alleged Perpetrators Validate
the Concept, 11 J. AM. PHYS. AND SURGEONS 14, 15-16 (2006) (App. Tab 49) (emphasis
20 Subsequent reviews of the pro-SBS literature demonstrate that such literature suffers badly from rampant circularity, observer bias, and failure to account for what we now know to be numerous potential alternative causes. See, e.g., Findlay, supra, at 39-58 (also documenting that even supporters of the SBS diagnosis have recognized the serious methodological flaws in the pro-SBS literature); see also Christian, et al., Abusive Head Trauma in Infants and Children, Committee on Child Abuse and Neglect, NEWS FROM THE FIELD at 1409 (June 2009) (while still endorsing shaking as a theory of abuse, the American Academy of Pediatrics also “acknowledge[d] that precise mechanisms for all abusive injuries remain incompletely understood.”).
31 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
added). Echoing Dr. Leestma’s call for greater consideration and investigation into other
conditions that mimic the SBS findings, Dr. Barnes compiled and published a lengthy
paper that included a five-page summary of known non-traumatic causes that mimic SBS.
Barnes, et al., Imaging of the Central Nervous System in Suspected or Alleged
Nonaccidental Injury, Including the Mimics, 18 TOP MAG RESON IMAGING 53 (App. Tab
36). Indeed, even staunch SBS advocates concede that “controversy remains” in part
because “there is no single or simple test to determine the accuracy of the diagnosis.”
Christian, supra, at 1410. In fact, the State’s own witness in this case, Dr. Manwaring,
conceded in his 2002 testimony that “many areas” of the SBS diagnosis “remain
confusing, particularly because shaken baby syndrome is not necessarily correctly
explained when we get the facts.” Manwaring TT at 41:20-25 (App. Tab 28) (emphasis
added). As a result, “in the instance of witnessed trauma being compared to unwitnessed
apparently non-accidental trauma, we are left with the necessity to conjecture in some
cases.” Id. at 41:20-42:3 (emphasis added).
2. Today, SBS Has Been Largely Debunked and Is Not Generally Accepted by the Relevant Scientific Communities
Even under Logerquist, which did not require the type of scrutiny subsequently
imposed by Daubert, where “significant dispute exists among experts in the relevant field
concerning the validity of the scientific evidence, it is not admissible.” State v. Garcia,
197 Ariz. 79, 82 (1999). Although a lack of consensus about the reliability of a medical
diagnosis is not per se fatal to admissibility of causation testimony based on that
diagnosis, such lack of consensus is a factor that weighs heavily against admissibility. To
reiterate, under Daubert: “Law lags science; it does not lead it.” Hendrix, 609 F.3d at
1203 (quoting Rider, 295 F.3d at 1202 (quoting Rosen, 78 F.3d at 319)).
While almost no one in the scientific mainstream questioned SBS’ existence and
reliability in 2000, today questioning SBS is mainstream. See, e.g., Szalavitz, The Shaky
Science of Shaken Baby Syndrome, TIME (Healthland) (online, Jan. 17, 2012); Bazelon,
Shaken-Baby Syndrome Faces New Questions in Court, N.Y. TIMES (Dec. 2, 2011);
32 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Hansen, Unsettling Science, ABA. J. (Dec. 2011); Gabaeff, Challenging the
Pathophysiologic Connection Between Subdural Hematoma, Retinal Hemorrhage and
Shaken Baby Syndrome, 12 W. J. EMER. MED. 144 (2011) (App. Tab 40) (“It appears that
SBS does not stand up to an evidence-based analysis.”); Miller, et al. Overrepresentation
of Males in Traumatic Brain Injury of Infancy and in Infants with Macrocephaly: Further
Evidence that Questions the Existence of the Shaken Baby Syndrome, 31 AM. J. FORENSIC
MED. PATH. 165, 169 (2010) (App. Tab 53) (“Several recent observations have converged
to raise serious questions about SBS and whether shaking alone can cause the triad. . . .
How could such a diagnosis based on such flimsy evidence and with such far-reaching
implications become so entrenched in pediatric and legal medicine?”); Talbert, Shaken
Baby Syndrome: Does It Exist?, 72 MED. HYPOTHESES 131 (2009); Anderson, Does
Shaken Baby Syndrome Really Exist?, DISCOVER (Dec. 2, 2008); Gena, Comment, Shaken
Baby Syndrome: Medical Uncertainty Casts Doubt on Convictions, 2007 WIS. L. REV.
701, 710 (“Today, there is no consensus among medical professionals as to whether the
symptoms that have traditionally been attributed to SBS are necessarily indicative of
shaking.”); Leestma, “Shaken Baby Syndrome”: Do Confessions by Alleged Perpetrators
Validate the Concept, 11 J. AM. PHYS. AND SURGEONS 14, 15-16 (2006) (“It should be
apparent that from virtually every perspective many flaws exist in the theory that shaking
is causative.”); Uscinski, Shaken Baby Syndrome: An Odyssey, 9 J. AM. PHYS. AND
SURGEONS 76 (2004) (SBS is “a widely proclaimed yet still hypothetical supposition”);
Lyons, Note, Shaken Baby Syndrome: A Questionable Scientific Syndrome and A
Dangerous Legal Concept, 2003 UTAH L. REV. 1109 (“Shaken baby syndrome . . . quite
possibly does not exist.”); V. DiMaio, et al., FORENSIC PATHOLOGY 362 (2d ed. 2001)
(“[We] have grave reservations as to the existence of SBS.”); Lloyd Dec. ¶ 10 (“Based on
research to date, the current understanding in the biomechanics field is that SBS is not a
valid mechanistic explanation for the triad findings in infants”); see also Wisconsin v.
Edmunds, 746 N.W.2d 590, 596 (Wis. Ct. App. 2008) (“a significant and legitimate
33 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
debate in the medical community has developed in the past ten years over whether infants
can be fatally injured through shaking alone”).
In 2001, the National Association of Medical Examiners issued a position
statement endorsing SBS. (Ex. 7, Plunkett Dec. ¶ 8). In 2006, the group withdrew its
endorsement. (Id.) At its annual meeting that year, presentations were made with titles
such as “Where’s the Shaking?: Dragons, Elves, the Shaken Baby Syndrome and Other
Mythical Entities” and “The Use of the Triad of Scant Subdural Hemorrhage, Brain
Swelling, and Retinal Hemorrhages to Diagnose Non-Accidental Injury Is Not
Scientifically Valid.” (Id.)
The debate about SBS is particularly controversial -- and the diagnosis is definitely
not generally accepted -- in cases such as this one where there is no outward or
radiographic evidence of abuse (e.g., bruises, grip marks, crush injuries, focal lesions on
the brain, or broken or fractured bones), yet medical experts entrenched in the old dogma
continue to claim they can diagnose abuse from the triad alone. See, e.g., Findlay, et al.,
Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right,
__ HOUSTON J. HEALTH POLICY __ (2012) (forthcoming soon) (“We now know . . . . it is
no longer valid to reason backwards from the triad to a diagnosis of trauma or abuse.”);
Turkheimer, supra, at 10-11 (App. Tab 57) (“As a categorical matter, the science of SBS
can no longer support a finding of proof beyond a reasonable doubt in triad-only cases”);
Goudge, INQUIRY INTO PEDIATRIC FORENSIC PATHOLOGY IN ONTARIO – REPORT, at 528
(2008) (App. Tab 43) (“[T]he predominant view is no longer that the triad on its own is
diagnostic of SBS.”); Crown Prosecution Service, Non-Accidental Head Injury Cases
(NAHI, formerly referred to as Shaken Baby Syndrome) -- Prosecution Approach (Mar.
24, 2011) (“it is unlikely that a charge for a homicide . . . could be justified where the only
evidence available is the triad of pathological features”); Ex. 4, Guthkelch Dec. ¶ 7 (“A
diagnosis of non-accidental death, such as ‘shaken baby syndrome’, is not justified when
the only evidence of abuse is the triad (subdural hematoma, cerebral edema and retinal
hemorrhages.”); Ex. 1, Barnes Dec. ¶ 5 (“Simply put, doctors cannot assume a non-
34 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
accidental cause of brain injury based on the medicine alone.”); Ex. 6, Mosley Dec. ¶ 8
(“There is now no longer consensus in the medical community that the findings I reported
in my autopsy report are reliable proof of SBS or child abuse.”).
SBS has become so controversial -- to the point where its very existence is in doubt
-- for the following four primary reasons.
a. Many Other Causes of the Triad Have Come to Light During the Past Decade
In 2002, the PCH physicians and Dr. Mosley testified that the SBS triad of findings
was nearly unique to SBS. Today, as a result of improved imaging techniques and
subsequent research, the list of diseases and conditions known to cause the same findings
previously attributed to violent shaking -- and which by and large were not even
considered by the PCH doctors or medical examiner in 2000 -- is long and growing. See,
e.g., Lloyd, et al., Biomechanical Evaluation of Head Kinematics During Infant Shaking
Versus Pediatric Activities of Daily Living, 2 J. FORENSIC BIOMECHANICS 1, 7 (2011)
(App. Tab 5) (setting forth a long list of known mimics for the SBS symptoms); Ex. 1 at ¶
5 (Dr. Barnes, neuroradiologist and leading author re SBS mimics, explains that the list of
“mimics” continues to grow and cites several articles re such mimics); Ex. 4 at ¶ 5 (Dr.
Guthkelch, neurosurgeon and author of original hypothesis article on SBS: “We know
that a number of other conditions -- natural and non-accidental -- may lead to the triad.”);
Ex. 7 at ¶ 5 (Dr. Plunkett, forensic pathologist: “It is now generally understood that the
triad of injuries -- retinal hemorrhage, subdural hemorrhage, and brain swelling -- occurs
secondary to a variety of natural events, particularly with respect to children under one
year of age.”); Findlay, supra p. 33 (“By 2006, it was widely recognized by supporters of
the [SBS] hypothesis that there are many ‘mimics’ of [SBS], including accidental causes
and a variety of illnesses and medical conditions, ranging from birth trauma to childhood
stroke.”); Squier, The “Shaken Baby” Syndrome: Pathology and Mechanisms, ACTA
NEUROPATHOL. 1, 3 (2011) (“The differential diagnosis of a baby with the triad is wide . .
. .”) (App. 56).
35 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In other words, we now know that many other medical conditions and non-abusive
events can cause the triad of clinical findings previously believed (without scientific
validation) to be unique markers of abuse, while there is tremendous debate and
uncertainty about whether those findings can even be caused by shaking.
b. The Assumptions About How Shaking Caused the Triad Were Wrong
Research and studies appear to confirm that all the fundamental assumptions about
how shaking causes the triad were wrong. In short, “the scientific underpinnings of SBS
have crumbled.” Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and
the Criminal Courts, 87 WASH. U.L. REV. 1, 11 (2009) (App. Tab 57.)
The SBS hypothesis was that shaking caused subdural bleeding by causing
bridging veins to tear. Today, even “the most ardent SBS believers now generally
concede that the prior theory that shaking caused subdural hemorrhage by causing
bridging veins to tear or rupture was likely incorrect.” Ex. 5, Lloyd Dec. ¶ 14 (citing
relevant literature); accord Findlay, supra, at 3 (“We now know, however, that the triad
does not necessarily or generally reflect the tearing of bridging veins”).
Similarly, SBS theory was that shaking causes retinal injury by causing capillaries
to swell and then burst. But studies have confirmed that retinal hemorrhages are not
traumatically caused by shaking and instead are a secondary consequence that occur as a
result of intracranial bleeding or pressure in a wide variety of non-traumatic and accidental
circumstances. See, e.g., Ex. 5, Lloyd Dec. ¶ 8 (“it is now generally accepted by the
medical community that . . . retinal hemorrhages indicate nothing more than that the
individual is suffering increased intracranial pressure (from whatever cause)”); Ex. 7,
Plunkett Dec. ¶¶ 6-13 (“In other words, severe retinal hemorrhages are linked to brain
swelling and life support rather than trauma itself.”); Ex. 2, Gardner Dec. ¶¶ 9-12, 22A
(“retinal hemorrhages are not a direct result of traumatic head injury but are secondary to
intracranial hemorrhage and an increase in intracranial pressure, events which are not at
36 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
all specific to abuse”); (App. Tab 2); Findlay, supra, at 31-32 (citing multiple sources for
proposition that retinal hemorrhages are not directly caused by shaking).21
As an example of one recent study that contradicts the SBS hypothesis regarding
retinal hemorrhages, the Dallas Medical Examiner’s Office removed and kept eyes from
corpses for subsequent evaluation by consulting ophthalmologic pathologists. According
to the study, “[f]or many years, the dogma of pediatric forensic pathology was ‘retinal and
optic nerve sheath hemorrhages are pathognomonic of abusive head injury,’ including
shaken baby syndrome. Growing controversy surrounding the existence of SBS led to
questioning of that dogma.” Matshes, Retinal and Optic Nerve Sheath Hemorrhages Are
Not Pathognomonic of Abusive Head Injury, 16 PROC. OF THE AMERICAN ACADEMY OF
FORENSIC SCIENCES 272 ( 2010). The study revealed that retinal hemorrhages are
commonly found in natural and accidental deaths, as well as in homicides, and identified a
statistically significant relationship between the occurrence of retinal and optic nerve
sheath hemorrhage and the restoring of a perfusing cardiac rhythm following advanced
life support and brain swelling. In other words, where there is hypoxia, increased
intracranial pressure, and prolonged resuscitation efforts, retinal hemorrhages of all kinds
follow, regardless of the traumatic or non-traumatic condition that brought about the
hypoxia.22 Such hemorrhages are not diagnostic of shaking. The study concluded that eye
evaluations are of “limited value” in child death investigations. (Id.)23
21 See also Lantz, Junk Science and Glass Houses, 114 PEDIATRICS 330 (2004) (App. 48) (stating that the “vested dogma” that the trauma of shaking causes retinal hemorrhages “is a faith-based assumption, not a scientific fact.”).22 Other literature is in accord. “An important and almost invariably overlooked part of the clinical history in babies presenting with the triad is a prolonged period of hypoxia, often 30 min or more between the baby being found collapsed and arriving in hospital and receiving advanced resuscitation. . . . Prolonged hypoxia and resuscitation have been shown to be significantly associated with retinal hemorrhages and may also explain the [brain injury] in babies with the triad.” Squier, supra, at 3 (App. 56). Steven, of course, had a period exceeding 30 minutes of hypoxia and received prolonged advanced resuscitation prior to anyone observing retinal hemorrhages.23 Studies also confirm that physicians check for retinal hemorrhages far more often when they suspect child abuse than when they do not. (Id. at 11-12.) For example, there is no indication during Steven’s weeklong stay at PCH that doctors even once checked his eyes for retinal hemorrhage.
37 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Finally, and perhaps most importantly, the supposition that shaking causes brain
damage and accompanying swelling through the shearing of nerve fibers has now all but
been abandoned as it has been shown that the damage previously attributed to such
shearing actually results from hypoxia -- lack of oxygen -- from whatever cause. See, e.g.,
Findlay, supra, at 14 (summarizing that “it is now widely accepted that the brain swelling
seen in allegedly shaken infants is hypoxic-ischemic rather than traumatic in nature”).
Those who still support the SBS diagnosis do so even though it has been shown
that the premises for the diagnosis have been proven false or, at least, in substantial doubt.
c. SBS Cannot Be Squared With Biomechanics
The 1968 Ommaya biomechanics study provided the “sole source of experimental
data from which the initial hypothetical shaking mechanism was drawn.” Uscinski, supra,
at 58 (App. Tab 58). But this study, like the many biomechanical studies that have
attempted and failed to validate the SBS hypothesis since then, does not actually support
shaking as a viable mechanism for the triad of clinical findings. In fact, while the findings
of biomechanical studies “are consistent with the physical laws of injury biomechanics,”
the results “are not, however, consistent with the current clinical SBS experience and are
in stark contradiction with the reported rarity of cervical spine injury in children
diagnosed with SBS.” Bandak, supra fn. 1, at 71 (App. Tab 35).
Biomechanical engineers, unlike most medical doctors, study the exertion of forces
on the human body and the body’s tolerances to such forces. Two decades of study by
biomechanical engineers, often in conjunction with neurosurgeons, has consistently
concluded that shaking likely does not generate enough force to cause the triad. Ex. 5,
Lloyd Dec. ¶ 10 (“angular accelerations associated with shaking are well below the
predicted thresholds for causing subdural hematoma and cerebral edema in an infant.”).
“Based on research to date, the current understanding in the biomechanics field is that
SBS is not a valid mechanistic explanation for the triad findings in infants.” Id.; accord,
Squier, supra, at 3 (App. Tab 56) (reviewing the biomechanical literature and concluding
that it shows that “shaking is no longer a credible mechanism” for the SBS findings).
38 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Ironically, biomechanical principles initially were believed to support SBS. The
seminal papers24 from the 1970s setting forth the SBS hypothesis cited only Dr.
Ommaya’s 1968 rhesus monkey whiplash study. But in 2002, Dr. Ommaya, a
neurosurgeon, and heavyweight co-authors in the field of biomechanics, published
Biomechanics and Neuropathology of Adult and Paediatric Head Injury, 16 BRIT. J.
NEUROSURG. 220 (App. Tab 54), in which they explained that Dr. Ommaya’s earlier
whiplash study involved adult rhesus monkeys, not infants. The monkeys had not been
shaken, but instead had been strapped in steel collision carts and impacted at various
speeds from the rear in an effort to gauge human thresholds to whiplash injury in car
accidents. (Id. at 221-22.) The authors further explained that the study actually showed
that subdural hemorrhage was not easily caused by whiplash, and they suggested that the
study had been misinterpreted by Drs. Guthkelch and Caffey in citing to it as scientific
support for SBS. (Id.)
Moreover, Dr. Ommaya and his co-authors observed that the forces generated by
even violent shaking by an adult were biomechanically insufficient (as little as 1/10th the
force generated from an impact to the head after a three-foot fall); accordingly, they would
expect to see soft tissue injury to the neck as well as spinal injury in any case where a
baby was actually shaken hard enough to cause subdural hemorrhage. (Id. at 222.) They
noted that such neck findings generally were not reported in the SBS literature. Id.25
In 2005, Dr. Faris Bandak, a biomechanical engineer, confirmed that the levels of
force required to shake a healthy infant hard enough to produce subdural injury would in
fact exceed the tolerance of the infant neck, causing near or total neck failure. Bandak, 24 Guthkelch, Infantile Subdural Haematoma and its Relationship to Whiplash Injuries, 2 BRIT. MED. J. 430 (App. Tab 44); Caffey, The Whiplash Shaken Infant Syndrome: Manual Shaking by the Extremities With Whiplash-Induced Intracranial and Intraocular Bleedings, Linked With Permanent Brain Damage and Mental Retardation, 54 PEDIATRICS 396 (1974) (App. Tab 38).25 Dr. Ommaya’s article also expressed doubt that shaking could directly cause retinal hemorrhage or damage to the eye. (Id. at 223) (stating that the “hypothesis” of “retinal hemorrhage caused by orbital shaking has not been tested experimentally” and the “levels of force required for . . . shaking to damage the eye directly is biomechanically improbable.”).
39 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
supra n. 28, at 78 (App. Tab 35). His article seriously called into question the assumption
that shaking alone could cause the triad of injuries associated with SBS, at least without
significant neck or spinal injury. In fact, Dr. Bandak noted that the rhesus monkeys had
substantially stronger necks and comparatively smaller heads than infants, which have
heavy heads and floppy, weak necks, but the rhesus monkeys studied by Dr. Ommaya all
showed neck damage from the whiplash. This finding directly contradicts the SBS-
supportive literature and the testimony of the State’s medical experts in this case. See,
e.g., Teaford TT at 30:4-7, 29:19-25 (App. Tab 29) (testifying that “because of the weak
neck muscles and a baby has a relatively large head, the velocity going back and forth
tears the bridging veins over the top of the skull, on the bottom of the skull, and on top of
the brain”: but “[i]t’s usual not to” see “external signs of trauma” in shaken babies
because “[t]he injury is on the inside of the brain, on the inside of the skull.”); Manwaring
TT at 8:1-11 (App. Tab 28) (“The infant has a large head proportional to the body,
therefore, mechanisms of trauma are more easily manifested in the head. Weak neck
muscles; the head can fall forward or backward more easily than the older child, and many
of these injuries do not necessarily involve the breaking of bones or external soft tissue
bruising, but are revealed by imaging studies of the brain, x-rays, CT scans, MRI scans.”).
d. So-Called Perpetrator Confession Cases Do Not Support the SBS Diagnosis; there Is No Known or Knowable Rate of Error for an SBS Diagnosis
Seemingly one reason the SBS theory was accepted so quickly without scientific
validation was because SBS advocates felt that the hypothesis was proven by perpetrator
confessions.26 Indeed, some SBS advocates continue to insist that confessions in the
context of police investigations or prosecutions validate the hypothesis. Christian, et al.,
Abusive Head Trauma in Infants and Children, Committee on Child Abuse and Neglect,
NEWS FROM THE FIELD (June 2009) (“Shaking was the most commonly reported
26 At the 2002 trial, Dr. Manwaring testified about supposed “documented, witnessed, admitted descriptions” of children who have retinal hemorrhages with a known cause of shaking. (App. Tab 28 at 27:6-12.)
40 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
mechanism of injury described in a series of AHT cases in which perpetrators admitted
abuse (68% of 81 cases).”)
But when Dr. Jan Leetsma, a neuropathologist at Children’s Memorial Hospital at
Northwestern University, closely examined the so-called SBS confession literature, he
found that in the vast majority of the “confession” cases there was clear evidence of
impact injury to the head -- i.e., the child’s injuries likely had not been caused by shaking
at all or, at least, were likely partially attributable to an impact. He found that the
confession literature only recorded 11 “pure” shaking cases and several of those were
questionable because no details were given about the degree of shaking, for how long, or
about the circumstances surrounding the confession. For example in some of the cases
where the caretaker admitted shaking the infant, it turns out the “admission” was of
bouncing the baby during play or attempts to revive the baby when it was found
unconscious. Leestma, Case Analysis of Brain Injured, Admittedly Shaken Infants: 54
Cases, 26 AM. J. FORENSIC MED. PATH. 199 (2005) (App. Tab 50.) Dr. Leestma
concluded that “confessions” did not provide an adequate basis to establish the reliability
of the SBS diagnosis.27
After nearly forty years, the literature still reveals no witnessed accounts or video
of the shaking of a previously well child resulting in the triad. Nevertheless, the State’s
medical experts testified at Drayton’s 2002 trial that their diagnoses were based on a
“statistical likelihood” of SBS. See, e.g., Manwaring TT at 23:8-11 and 33:19-21 (App.
Tab 28). But the case histories of alleged SBS cases is so deficient that there are no
reliable epidemiological studies of SBS that can be used to establish a known rate of error.
Leestma, Case Analysis of Brain-Injured Admittedly Shaken Infants: 54 Cases, 1969-
2001, 26 AM. J. FORENSIC MED. PATH. 199, 210 (2005) (App. Tab 50) (finding that the 27 Subsequent literature has only expanded on the reasons why confessions do not scientifically validate SBS. See, e.g., Findlay, supra p.33 (explaining the several reasons why confessions do not validate SBS); Squier, supra, at 3 (App. Tab 56) (reviewing so-called confession literature); see also Aleman v. Village of Hanover Park, 662 F.3d 897, 907 (7th Cir. 2011) (describing a confession of slight shaking in an SBS case where the father was told the injury must have been caused by shaking as “worthless as evidence, and as a premise for an arrest.”)
41 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“case-based information on allegedly ‘shaken’ infants is often scanty or missing, highly
variable in the manner reported, and not systematic in details provided. The case selection
methodology employed in most articles is inconsistent, often arbitrary, and individually or
collectively of insufficient numbers to permit robust statistical analysis, much less
declarative supportable statements of how certain injuries are supposed to have
occurred.”) (emphasis added).
Given the unreliable nature of the case studies, as reported by Dr. Leestma, it is no
wonder that “case reports and case studies are universally regarded as an insufficient
scientific basis for a conclusion regarding causation because case reports lack controls.”
Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1411 (D. Ore. 1996) (citing case
law); see also Siharath v. Sandoz. Pharms. Corp., 131 F. Supp. 2d 1347, 1361 (N.D. Ga.
2001) (“‘Case reports are not reliable scientific evidence of causation, because they
simply describe[] reported phenomena without comparison to the rate at which the
phenomena occur in the general population or in a defined control group; do not isolate
and exclude potentially alternative causes; and do not investigate or explain the
mechanism of causation.’”) (quoting Casey v. Ohio Medical Prods., 877 F. Supp. 1380,
1385 (N.D. Cal. 1995)).
3. SBS Is a Diagnosis For Criminal Prosecution, Not For Medical Treatment
“[P]eople can maintain an unshakeable faith in any proposition, however absurd, when they are sustained by a community of like-minded
individuals.”
-- Kahneman, THINKING, FAST AND SLOW 217 (2011).
SBS has never been just a medical diagnosis. Instead, it is a diagnosis used
primarily for prosecution, not treatment. Even the name signals its broader function. “Of
the several hundred syndromes in the medical literature, almost all are named either after
their discoverer (e.g., Adie’s Syndrome) or for a prominent clinical feature (e.g., Stiff
Man Syndrome).” Guthkelch, Problems of Infant Retino-Subdural Hemorrhage with
Minimal External Injury, __ HOUSTON J. HEALTH & POLICY __ (2012) (forthcoming
42 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
soon). SBS, by contrast, is a name that focuses on the alleged cause of certain clinical
findings. (Id.) Tightly tethering the concept of abuse to the triad findings has always
been a focus of SBS advocates. That focus persists even now that it is well-accepted that
there are many other causes of the triad.
For example, the Committee on Child Abuse and Neglect of the American
Academy of Pediatrics has long been dominated by staunch SBS advocates. In 2001, that
Committee issued a policy statement that not only endorsed SBS, but said that a
presumption of abuse should exist whenever a child presented younger than 1 year with
intracranial injury and retinal hemorrhages. Shaken Baby Syndrome: Rotational Cranial
Injuries--Technical Report, PEDIATRICS Vol. 108 No. 1 (July 2001). By 2009, however,
the shaking hypothesis had become controversial. Yet, instead of revisiting the SBS
hypothesis in light of the controversy over the supposedly supporting science, the
Committee issued another policy statement suggesting that physicians stop using the term
Shaken Baby Syndrome -- and instead use the term Abusive Head Trauma. Christian, et
al., Abusive Head Trauma in Infants and Children, Committee on Child Abuse and
Neglect, NEWS FROM THE FIELD (June 2009).28 It made this name change not to more
accurately reflect scientific discoveries, but rather to help prosecutors to continue to use
SBS to obtain criminal convictions despite the mounting criticism of the scientific
underpinnings of SBS: “Legal challenges to the term ‘shaken baby syndrome’ can distract
from the more important questions of accountability of the perpetrator and/or the safety
of the victim.” (Id. emphasis added.)
28 In 2009, the Committee renamed SBS “Abusive Head Trauma” (“AHT”), but this change was merely a shift in terminology and simply encompassed other mechanisms of abuse; it did not abandon or alter the shaking hypothesis. Whether called AHT or SBS, the hypothesis relied upon by the State in this case remains the same: that a medical doctor can reliably diagnose shaking from three internal findings -- subdural hemorrhage, retinal hemorrhage, and encephalopathy. See, e.g., Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms, 151 FORENSIC SCI. INT. 71, 73 (2005) (App. Tab 35) (“While SBS has taken on other labels in the literature, adding or substituting terms like ‘whiplash’ and ‘impact,’ it still maintains the shaking component as the central causation substratum of this diagnosis.”).
43 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The child abuse protection community has prosecuted SBS for over thirty years.
Thousands have been convicted or had their children taken away based on the SBS
hypothesis. During that same period, SBS was taught in medical schools not as a
hypothesis but as a scientific fact. And so it is perhaps not surprising that, at this point,
there are those who zealously resist any challenge to the SBS construct.
In particular, there is a National Center on Shaking Baby Syndrome led by a board
featuring prosecutors and pediatric physicians who often testify in SBS cases. The Center
advocates for SBS’ reliability, trains law enforcement officers, and supports prosecutions.
See Turkheimer, supra, at 29 (App. Tab 57). It also appears to coordinate attacks against
physicians who challenge SBS dogma. See, e.g., Evidence Outweighs Belief, Letter to the
Editor, MINN. MEDICINE (January 2010) (nine doctors, a prosecutor and a police detective,
all of whom are associated with the National Center on Shaken Baby Syndrome, invoked
the “memory of dead babies” to attack the research of Dr. Plunkett as mere “belief”).
Every other year, the Center puts on international conferences for physicians, prosecutors
and social workers to discuss new SBS developments that are dedicated, ironically, to
castigating each new batch of opposing literature as “biased,” “misleading” and
“unscientific.”29 Well-accepted medical diagnoses, of course, do not need international
conferences to vouch for their existence.
The tethering of medicine and law is also apparent from the SBS literature. For
example, there are manuals for prosecuting SBS cases, which contain input from pro-SBS
doctors and which are littered with pearls of junk science.30 See, e.g., Holmgren,
Prosecuting the Shaken Infant Case in THE SHAKEN BABY SYNDROME: A
29 According to the Center’s website, www.dontshake.org, the Twelfth International Conference on Shaken Baby Syndrome recently occurred. The keynote address was titled: “While We Argue, Children Die: The Consequences of Misinformation.” This address supposedly “set the tone for a meeting grounded in science.” Other prominent presentations made were about how to respond to Daubert challenges and a panel that discussed the circumstances of perpetrator confessions gathered from around the world.30 Junk science is “the mirror image of real science, with much of the same form but none of the same substance.” Peter W. Huber, Galileo’s Revenge: Junk Science in the Courtroom 1-2 (1993).
44 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MULTIDISCIPLINARY APPROACH 307 (2001) (providing prosecutors with ideas for
physician testimony such as: the “expert can testify that the forces the child experiences
[from shaking] are the equivalent of a 50-60 m.p.h. unrestrained motor vehicle accident,
or a fall from 3-4 stories on a hard surface”.)31 Similarly, pediatricians publish articles and
book chapters dealing with legal issues, such as about the mens rea of alleged shakers.
See, e.g., A. Levin, Retinal Haemorrhages and Child Abuse, in 18 RECENT ADVANCES IN
PAEDIATRICS 151 (2000) (“we know that the violence which results in SBS injuries is
extreme . . . . [and] beyond . . . that even the most distraught person would recognize as
injurious.”).
In sum, SBS is and always has been a diagnosis that is not primarily medical or
scientific, but instead one that seeks to intertwine medicine with law and child protection
policy. That intertwining may be understandable, but the tendency for the unproven
hypothesis to be shaped and perpetuated by forces other than objective science is
undeniable and cannot be ignored in determining whether the diagnosis is sufficiently
reliable to be admitted in a murder case.
V. The State’s Experts’ SBS Testimony Is Not Based on Scientific or Specialized Knowledge that Will Assist the Trier of Fact
Daubert recognized that “[e]xpert evidence can be both powerful and quite
misleading because of the difficulty in evaluating it.” Daubert I, 509 U.S. at 595 (internal
quotations omitted). Accordingly, the Supreme Court required that testimony be based on
“scientific or specialized knowledge” (not speculation, not conjecture, not controversy, but
actual proven fact) and that it assist the trier of fact. Id. Here, the State’s experts’
testimony fails this test for three reasons. First, the PCH physicians failed to perform a
proper differential diagnosis. Second, the PCH experts lack the requisite specialized
knowledge in the relevant scientific areas. Third, an expert testifying as to medical
31 To be clear, biomechanical testing has proven this type of testimony, which was given by the State’s experts at Drayton’s first trial, to be absolutely false. Indeed, one of our experts has published about a little girl who suffered the triad and eventually died after falling only 28 inches, the whole incident captured on video. See Plunkett, Fatal Pediatric Head Injuries Caused by Short-Distance Falls, 22 AM. J. FORENSIC MED. PATH. 1 (2001).
45 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
causation -- a key element of the State’s burden of proof -- must be able to state his or her
opinion to the requisite standard of proof, and the State’s experts here concede that SBS
cannot be diagnosed in a case like Steven’s without resort to speculation. Speculation
simply cannot satisfy the State’s burden of proving causation beyond a reasonable doubt.
A. The State’s Experts’ Did Not Perform a Proper Differential Diagnosis
Evidence of scientific knowledge is relevant only if the “reasoning or methodology
properly can be applied to the facts in issue.” Schudel v. G.E. Co., 120 F.3d 991, 996 (9th
Cir. 1997). In other words, there must be a logical nexus between the scientific studies
relied upon by the expert and the conclusion reached in the particular case: “Nothing in
either Daubert or the Federal Rules of Evidence requires a district court to admit opinion
evidence which is connected to existing data only by the ipse dixit of the expert. A court
may conclude that there is simply too great an analytical gap between the data and the
opinion proffered.” General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997); see also
McClain, 401 F.3d at 1252 (noting that a prerequisite to reliable cause-and-effect
testimony is that “medical science understands the physiological process by which a
particular disease or syndrome develops”) (quoting Black v. Food Lion, Inc., 171 F.3d
308, 314 (5th Cir. 1999)).
Accordingly, before expert testimony establishing medical causation may be
admitted, Daubert requires that the medical expert be able to conclude that the alleged
cause is the cause in fact -- here, not merely that shaking can cause the triad of injuries, but
that shaking actually caused the triad of clinical findings that led to Steven’s death. See,
e.g., Daubert II, 43 F.3d at 1320. To testify that a particular cause was the cause of
particular injuries, Daubert therefore requires that the State’s experts conduct what is
called a proper “differential diagnosis,” also known as “differential etiology.” See, e.g.,
Clausen, 339 F.3d at 1057. The case law defines a proper differential diagnosis as a
scientific process of elimination whereby the possible causes of a condition or injury are
46 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
identified and then, if possible, are ruled out one-by-one until the cause is determined. Id.;
accord Hendrix, 609 F.3d at 1195.
The PCH physicians cannot so testify. They diagnosed shaking so quickly in 2000
that it is difficult even to pretend for argument’s sake that they engaged in any serious
differential diagnosis. Indeed, both their conduct and their sworn testimony was that they
believed the triad of findings could be caused by violent shaking, except with the rarest of
exceptions. Thus, other than to review the blood tests for infection and one particular
metabolic disorder, they considered no other alternative diagnoses.
In any event, the State did not do a proper differential diagnosis, for at least these
reasons:
1. SBS Cannot Reliably Be “Ruled In” as a Cause of the Triad
The first step in a proper differential diagnosis is for the expert to compile a
“comprehensive” list of causes that are each capable of explaining the clinical findings.
Hendrix, 609 F.3d at 1195; Clausen, 339 F.3d at 1057. Importantly, for each such
potential cause the expert “rules in” at this stage, that cause “must actually be capable of
causing the injury.’” Hendrix, 609 F.3d at 1195 (quoting McClain, 401 F.3d at 1253)
(excluding potential cause “ruled in” by expert because it had not yet been established to
be a potential cause of the injuries in question); see also Hall, 947 F. Supp at 1413
(“Testimony regarding specific causation in a given patient is irrelevant unless general
causation is established.”). “Expert testimony that rules in a potential cause that is not so
capable is unreliable.” Clausen, 339 F.3d at 1058 (emphasis added).
As explained, SBS has not been proven to be a potential cause of the triad. Indeed,
attempts to quantify case studies have shown that there is no statistically relevant sample
available. Similarly, attempts to confirm the biomechanics have shown the shaking
hypothesis to be “biomechanically improbable.” SBS merely is a hypothesis that is being
debated, that has not been validated, and that appears to be at odds with science. Any
differential diagnosis based upon a potential cause that has not reliably been shown to in
fact be capable of causing the injuries in question is, for Daubert purposes, flawed and
47 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
inadmissible.
2. The State’s Experts Did Not Comprehensively Identify and Consider Alternative Causes
It also is improper under Daubert and the differential diagnosis method for an
expert to start with one possible cause and deem it to be the cause-in-fact without first
comprehensively identifying other potential causes and ruling them out. Hendrix, 609
F.3d at 1195; Clausen, 339 F.3d at 1057; Leestma, supra, at 16 (App. Tab 49) (“it is
inappropriate to select one mechanism only and ignore the rest of the potential causes”);
Ex. 4, Guthkelch Dec. ¶¶ 6-8 (describing the steps of a proper differential diagnosis in
SBS cases).
The record makes clear that the State’s experts did not do this in 2000 (with the
exception of checking for infection and one particular metabolic disorder). Indeed, the
State’s experts did not even fully review Steven’s medical history or talk to his prior
treating physicians before diagnosing abuse. Even those who today still advocate for SBS
recognize that it must be treated as a “rule out” diagnosis -- i.e., it is SBS only if all other
potential causes are thoroughly identified, explored and can confidently be ruled out. See,
e.g., Ex. 1, Barnes Dec. ¶¶ 5, 7; Ex. 4, Guthkelch Dec. ¶¶ 5-7, 10-14. That did not occur
here.
3. The State’s Experts Did Not Reliably Consider and Rule Out Venous Thrombosis
“[E]xpert testimony that neglects to consider a hypothesis that might explain the
clinical findings under consideration may also be unreliable.” Clausen, 339 F.3d at 1059.
Here, venous thrombosis obviously is a potential alternative cause. It was not considered
by the State’s experts before reaching their SBS diagnosis, further undermining the
reliability of the State’s proffered testimony.
4. The State Has Not Identified Any Scientifically Valid, Reliable Way To “Rule Out” All Other Causes in a Case Like This
The final step of a proper differential analysis is for the expert to apply the facts of
the patient’s case to each such potential cause in order to form a reliable opinion about the
48 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
actual cause of the patient’s symptoms. Hendrix, 609 F.3d at 1197; Clausen, 339 F.3d at
1058. An “expert must provide reasons for rejecting alternative hypotheses using
scientific methods and procedures[,] and the elimination of those hypotheses must be
founded on more than subjective beliefs or unsupported speculation.” Clausen, 339 F.3d at
1058 (internal quotations omitted). If the expert cannot reliably and to the relevant
standard of proof exclude all the causes except for one, the expert’s testimony must be
precluded.
At this point, due to the failure to investigate certain theories and to preserve
necessary physical evidence, it is now too late for certain theories to be investigated
adequately. See ex. 8, Squier Dec. ¶ 4 (noting that at autopsy only 5 samples of the brain
were taken and no special stains were done to examine the detailed microscopic changes in
the brain); ex. 2, Gardner Dec. ¶¶ 14-21 (detailing the myriad ways that a consult in 2000
by an ophthalmologist at the hospital, or by an ophthalmic pathologist during the autopsy,
or simply an adequate preservation of eye tissue would be of aid in making a proper
differential diagnosis.)
More fundamentally, the State cannot establish how a reliable differential diagnosis
can be done to establish SBS beyond a reasonable doubt in a case like this, where baby
Steven had such a confounding medical history, his effusions were of a different age, and
there are no other signs of abuse. See, e.g., ex. 4, Guthkelch Dec. ¶¶ 10-14. No literature
provides clarity, or serves as consensus, as to how a reliable differential diagnosis can be
done here, or what the rate of error would be in making such a diagnosis. And regardless
of whether the PCH doctors testified consistently with medical belief in 2002, the fact is
that today their methodology does not satisfy the requirements of Daubert.
B. The Burden of Proof Cuts Against Admitting the SBS Evidence
“‘Expert evidence can be both powerful and quite misleading because of the
difficulty in evaluating it.’” Daubert I, 509 U.S. at 595 (source omitted.) Under Daubert,
the party proposing expert testimony on causation “bears the burden of proving
admissibility” of that testimony. Lust v. Merrell Dow Pharmaceuticals, 89 F.3d 594, 598
49 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(9th Cir. 1996); see also Daubert II, 43 F.3d at 1316 (9th Cir. 1995). And, importantly,
where, as here, the expert testimony constitutes the proponent’s only evidence of
causation, the Court “determination of relevance must consider the applicable substantive
standard.” Schudel, 120 F.3d at 996 (because under Washington tort law, a plaintiff must
show that the “the act complained of ‘probably’ or ‘more likely than not’ caused the
subsequent disability, plaintiffs’ expert’s testimony that it was merely possible that the
alleged toxin caused plaintiff’s brain damage was not relevant); see also Daubert II, 43
F.3d at 1320 (“plaintiffs must nevertheless carry their traditional burden; they must
prove their injuries were the result of the accused cause and not some independent
factor.”) (emphasis added).
In a criminal murder case such as this, “the Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. at
364 (emphasis added). The State thus bears the burden of proving that Drayton caused
baby Steven’s injuries and death, and the State’s sole causation theory is that Drayton
violently shook his sick baby. Because there is no physical or radiologic evidence of
abuse -- no bruising, no fractures, no spinal injuries, no eye witness accounts of shaking,
no confession, not even any focal lesions on Steven’s brain -- the State’s entire causation
case rests upon the causation opinions of the PCH doctors.
Proof beyond a reasonable doubt has “traditionally been regarded as the decisive
difference between criminal culpability and civil liability.” Jackson v. Virginia, 443 U.S.
307, 315 (1979). Accordingly, given the absence of other evidence of medical causation,
testimony by the PCH doctors that SBS caused Steven’s death to a “reasonable degree of
medical certainty,” that is, “more likely than not,” is insufficient to satisfy the State’s
burden of proving relevance.
Arizona defines “beyond a reasonable doubt” to mean “proof that leaves you firmly
convinced of the defendant’s guilt.” State v. Portillo, 182 Ariz. 592, 596 (Ariz. 1995).
Proof that leaves open a “real possibility” that the defendant “is not guilty” is insufficient
50 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to satisfy the State’s burden of proof. The State’s medical experts testified that their
opinions necessarily entailed a certain amount of “conjecture.” Their opinions are not
reliably connected to the science that supposedly supports the SBS hypothesis, which
hypothesis is fueled not by a desire to further science or medicine but rather a desire to
hold individuals culpable for the very sad, and poorly understood, deaths of infants. There
is no way the State can meet its burden to show that SBS has been sufficiently validated
such that it meets this burden.
C. The State’s Experts Are Not Qualified in the Relevant Scientific Fields To Offer Opinions Regarding SBS
SBS advocates, who are most commonly pediatricians, pediatric nurses, children’s
hospital doctors, and social workers, routinely urge that courts should defer to their
expertise because they regularly treat children. But though they treat children, they do not
actually see children being shaken, are not experts in the body’s tolerances to particular
forces, and have no training at all about what kinds of forces shaking can inflict on the
body of an infant. It is well established that an individual “cannot qualify as an expert
generally by showing that the expert has specialized knowledge or training which would
qualify him or her to opine on some other issue.” In re Diet Drugs, 2001 WL 454586 at
*7 (E.D. Pa. 2001); see also In re: Diet Drugs, 2000 WL 962545 at *3 (E.D. Pa. 2000)
(testimony outside an expert’s area of expertise should be excluded) (citing cases); Soldo
v. Sandoz Pharms. Corp., 244 F. Supp. 2d. 434, 568 (W.D. Pa. 2003) (excluding plaintiffs’
medical causation expert in birth defect litigation because he was not qualified in the fields
of epidemiology, statistics, neurology, neuropathology, or obstetrics-gynecology).
In addition, as occurred at Drayton’s first trial, pro-SBS doctors routinely seek to
testify beyond their expertise, such as doctors who are not ophthalmologists or forensic
pathologists testifying about what can be gleaned from microscopic bleeding within the
eye, and doctors -- for example, Drs. Pollack, Teaford and Manwaring in this case -- who
are not epidemiologists but who purport to testify regarding the statistical relevance of
case reports. See, e.g., Manwaring TT at 33:19-21 (“[S]tatistically, it is said that about
51 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
half of children who show a mechanism of cerebral death don’t show external injury or
have occult injury.”); Teaford TT at 29:19-25 (App. Tab 29) (“It’s usual not to” see
“external signs of trauma” in shaken babies because “[t]he injury is on the inside of the
brain, on the inside of the skull.”).
Due to their lack of specialized knowledge in the relevant scientific and medical
subspecialties, the State’s experts all gave testimony that was “flat wrong or grossly
overstated.” Ex. 3, Griest Dec. ¶ 5 (emphasis added); see also ex. 2, Gardner Dec. ¶
22(A)-(E) (describing obvious errors and misstatements by each of the State’s experts with
respect to their testimony about what can be gleaned from the eye findings); ex. 5, Lloyd
Dec. ¶¶ 13-19 (“[t]he medical testimony presented by the state of Arizona at trial was
fraught with what is now known to be inaccurate information about SBS” and describing
key false statements by Drs. Emily Pollack, Kim Manwaring, and Patricia Teaford); ex. 7,
Plunkett Dec. ¶¶ 14-15 (“[i]n addition to the retinal findings,” the State’s experts erred in
concluding that “Steven’s subdural hemorrhage must have been caused by traumatic
shaking” because “while shaking would not cause brain injury or subdural hemorrhage, it
presumably would cause bruising, fracture or other detectable crush injuries to the infant’s
chest or arms. Steven had no such injuries.”).
Some of the State’s experts also argued that the bleeding in Steven’s cervical spinal
canal somehow indicated trauma. Steven’s autopsy report, however, noted a “scant
amount of upper cervical subdural hemorrhage” and “hemorrhage along the inner surface
of the cervical spinal canal.” And it is well established that “it is common for intracranial
subdural blood to track into the spinal subdural compartment.” Squier, supra, at 3-5 (App.
Tab 56). Such blood is a result of gravity flow and the dying process and does not reflect
traumatic injury to the spine or surrounding tissues. (Id.)
Because the State’s experts demonstrably lack specialized knowledge in the
relevant fields -- biomechanics, ophthalmology, pediatric pathology, pediatric neurology,
statistics, and epidemiology -- these experts are not qualified to give medical causation
opinions about SBS, and their testimony is irrelevant under Daubert.
52 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
VI. Conclusion
Male babies are diagnosed far more often with SBS than are female babies -- by a
ratio of nearly 2-1. By a very similar margin, male babies more frequently suffer subdural
hemorrhage from natural causes. See Miller, Overrepresentation of Males in Traumatic
Brain Injury of Infancy and in Infants with Macrocephaly: Further Evidence that
Questions the Existence of the Shaken Baby Syndrome, 31 AM. J. FORENSIC MED. PATH.
165 (App. Tab 53). Why is that?
After forty years, the literature still does not reveal a single witnessed or videotaped
incident of a shaking causing the triad. Why is that?
How does shaking cause the triad? How accurate is a diagnosis based only on the
triad? How can other causes for Steven’s death reliably be excluded?
These are the most fundamental questions about SBS, yet the scientific community
is not yet in agreement on them. It would be wrong to allow the State to allow experts to
come to trial and guess, or speculate, or argue about SBS when it is not yet a scientifically
validated entity and cannot reliably establish under the facts of this case that Drayton
murdered his son. We ask that testimony about SBS be excluded from trial.
Respectfully submitted this 16th day of October, 2012.
LEWIS AND ROCA LLP
By: /s/ Randy PapettiRandy Papetti40 N. Central Ave. 19th FloorPhoenix, AZ 85004(602) 262-5337
OSBORN MALEDON, P.A.
Christina C. Rubalcava, 0263572929 N. Central Ave., 21st FloorPhoenix, AZ 85012-2793(602) 640-9347
Attorneys for Defendant Drayton Shawn Witt through The Arizona Justice Project
53 3144704.2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The foregoing was electronically filed this16th day of October 2012 and copy e-deliveredand hand delivered, to:
Honorable Robert GottsfieldMaricopa County Superior Court101 W. Jefferson, ECB 914Phoenix, AZ 85003
COPY of the foregoing was e-mailedand mailed this 16th day of October, 2012, to:
Stephanie LowDeputy Maricopa County Attorney301 W. Jefferson, 9th FloorPhoenix, AZ 85003Attorney for State of Arizona
/s/ Carole Hanger
